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'INDEX 


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SI. No. Description 

1. Sur-Rejoinder elated 03.07.2017 on behalf of 

i 

Respondents 

2. Annexure R-l - A Copy of the Order dated 
2' 7 ,06.2017 passed by this Hon’ble Court in 
W.P.(C) No. 494/2012., W.P.(C) 797/2016.& 
W.P. (C) No. 342/2017 

Annexure R-2 - A Copy of the Order dated 

O ♦ 

28.10.2016 passed by this Hon’ble Court in 
W.P.(C) No. 797 of 2016. ' 

4, Annexure R-3 - A Copy of the Order dated 
09.05.2017 passed by this Hon’ble Court in 
W.P.(C) No. 342 of 2017. 

5 Annexure R-4 - A True Copy the Final 
Judgment dated 09.06.2017 passed by this 
Hon’ble Court in W.P.(C) No. 247/2017. 


6. Annexure R-5 - A Copy of the notification 
dated 11.12.2015 issued by Ministry of 

4 

Communication & Information Technology. 

✓ 

7 Annexure R-6 - A Copy of’ the office 
Memorandum dated 22.06.2017 issued by 
Central Government. 





Pg. No. 

1-68 

69-73 

74 

75-76 

77-233 

234-235 

236-241 






IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION • 

WRIT PETITION (CIVIL) No. 342 of 2017 
In the matter of: 


Shantha Sinha & Another 


. . . . Petitioners 


Versus 


Union of India and Another . . . Respondents 

SUR-REJOINDER ON BEHALF OF RESPONDENTS TO THE 
REJOINDER AFFADIVT DATED 21.06.2017 BY THE 

PETITONERS 

I, Rajendra Prasad Pant, son of Late Sh. C. B. Pant aged 
about 1 53 years, occupation Assistant Director General, residing at 
UIDAI Headquarters, Jeevan gharati Building, New Delhi, do hereby 
solemnly affirm and say as follows: 


1. That I am working as the Assistant Director General of Unique 

i 

Identification Authority of India, the Respondent No. 2 in the 
present Writ Petition. I am conversant with the facts and 
circumstances of the present case and I am duly authorised by 
respondent Nos. 1 and ,2 to affirm this affidavit on behalf of 

i 

both the respondents in the present Writ Petition and as such 
I am competent to do swear the present Affidavit on behalf of 
Respondent Nos. 1 and 2. . 

That the above mentioned matter was listed on 27 th of June, 
2017 before the vacation bench of this Hon’ble Court wherein 
the Court refused to pass any interim order and allowed the 






2 - 

Union of India an opportunity to file a Sur-Rejoinder, A Copy 
of the Order dated 27.06,2017 passed by this Hon’ble Court in 
W.P.(C) No. 494/2012, W.P.(C) 797/2016 & W.P. (C) No. 
342/2017 is marked a$ Annexure R-l. { 

3. At the outset it is pertinent to state that both W.P. (C) No. 
797/2016’ and W.P. (C) *No. 342/2017 are matters, which 
challenge the vires of the Aadhaar (Targeted Delivery of 
Financial and Other Subsidies, Benefits and Services) Act, 
2016 [hereinafter referred to as the Act] in which rule has been 
issued by this Hon’ble Court and tagged along with W.P. (C) No. 
494/2012 and connected matters which are pending 
* consideration by a larger bench. A cop}' of the Order dated 
28.10.2016 passed by this Hon’ble Court, in W.P.(C) No. 797 of 

04 ) 

2016 is marked as Annexure R-2^A copy of the Order dated 
09.05.2017 passed by this Hon’ble Court in W.P.(C) No. 342 of 

2017 is marked is Annexure R-3.{ IS- o (?) 


4. On 09.05.2017 when the present petition, i.e. W.P. (C) No. 


342/2017 had com? up for the first time before this Court on 

the last day of the vacation, this Hon’ble Court despite prayer 

% 

made by the Petitioners with vehemence, had refused to grant 

any interim reliefs and had .given liberty to the Petitioners to 

mention the matter before the Hon’ble Chief Justice in the 
* 

following terms: 


—-hp 

/MANJU SHARMA 


* 


, Delhi 

“Ssi/n. No. 8414 
Date of Expiry 
A'25 May 2021 /<? 

# 
OF 


“Issue Rule Nisi. Tag with Writ Petition (Civil) No. 
494 of 2012 and other connected matters. 

Mr. Shyam Divan, learned senior counsel appearing 
for the petitioners, submits that some urgent orders 





are required on the interim prayers made by the 
petitioners, as enrollment under Aadhaar in respect 
of certain schemes is required by 30th June, 2017 . 

He has also drawn our attention to the orders dated 
August 11, 2015 passed in Writ Petition (C)No. 494 

i t 

of 2012 wherein the Court observed that having 
regard to the importance of the matter, it is-desirable 
that the matters be heard at the earliest. He, further 
submits that same sentiments were expressed by 
the Constitution Bench in its order dated 15th 
October, 2015. 

i 

It will always be open to the petitioners to mention 
the matter before Hon'ble the Chief Justice for 
constituting an appropriate Bench to hear the 
matters finally at an early date. It will also be open 
to the petitioners to request for hearing of the 
interim prayers made by them.” 

Thereafter on 12.05.2017, during vacations when the Chief 

justice was presiding over a Constitution Bench hearing the 

♦ 

matter pertaining to validity of Triple Talaq, the present matter 

was mentioned by the Petitioners Counsel wherein the Chief 

Justice'’was pleased to pass an order as follows: 

“UPON hearing the counsel the Court made the 
followingO R D E R • 

* i 

List before a Division Bench of two Hon'ble-Judges 
onl7.05.2017, to consider the interim prayers 
made in the instantwrit petition.” 



The petitioners are wrongly construing the said order as an 
order of the Constitution Bench. It is submitted that the said 
order was passed by Hon'ble the Chief Justice who was at that 
point of time, incidentally happened to be presiding over the 
Constitution Bench. The said order, in the most humble 


.manju sharmA submission of the respondents, may not be construed as the 

(i Delhi \ ★ 

TV'of" V pU J order passed by the Constitution Bench. 

2021 AT 


--^; v \ 

ST v \ ' 



6. Thereafter, on 09.06.2017, a detailed judgment came to be 
pronounced by a Coordinate Bench of this Hon’ble Court in 
Writ Petition (C) No. 247 of 2017 and connected cases which 
recorded several findings which would have a 7 direct bearing on 
the present matter and/or concludes many of the issues raised 
in the present application, including the preliminary objections 
raised by the answering respondent in this case! Therefore, it 
would be appropriate to examine the following findings;, 


7. The Coordinate Bench in the judgment of Binoy Viswam v. 

* 

Union of India & Ors. (Writ Petition (C) No. 247 of 2017) noted 
that the Constitutional validity of the Aadhaar Act 2016 
challenged in W.P. (C) No. 797 of 2016 has been tagged along 
with W.P. (C).No. 494 of 2012 and referred to a larger bench. 
The observations can be found in Para 18 of the judgment as 
follows: 

“18) Even the Constitutional 'validity of the 

aforesaid Act is challenged in this Court in Writ 

Petition (C) No. 797 of 2016, which has also been 

tagged along with Writ Petition (C) No. 494 of 2012, 

the lead matter in the batch of matters which has 

been referred to the Constitution Bench.” 

. * 

8. The Coordinate Bench in its Judgment in W.P. (C) 247 of 2017 

has consciously decided not to touch upon issues which were 

referred to the larger bench. These observations can be found 

in Paras 43, 71 and 91 which are as follows: 

“43) We may. mention at this stage itself that on 
conclusion of his arguments, Mr, Divan was put a 
specific query that most of the arguments 
presented by him endeavoured to project 
aesthetics of law and jurisprudence which had 
t he shades of ‘Rijght to Privacy’ jurisprudence 
which could not b e gone into by this Bench as 
this very aspect was already referred to the 
• Constitution Bench. Mr. Divan was candid in 






s 

accepting this fact and his submission was that in 

these circumstances, the option for this Bench was 

to Stay the operation of proviso to sub-section (2) of 

Section 139AA of the Act till the decision is 

rendered by the Constitution Bench. 

*** 

71) Before we enter into the discussion and weigh 
the merits of arguments addressed on both sides, 
one aspect needs to be made absolutely clear, 
though it has been hinted earlier as well. 

Conscious of the fact that challenge to Aadhaar 
scheme /legislation on the ground that it was 
violative of Article 21 of the Constitution is 
pending before the Constitution Bench and, 
t herefore, this Bench could not have decided 
that issue, counsel for the petitioners ha d 
submitted that they would not be pressing the 
i ssue of Right to Privacy. Notwithstanding the 
same, it was argued by Mr. Divan, though in the 
•process Mr. Divan emphasised that he was 
touching upon other facets of Article 21. Likewise, 
Mr. Salman Khurshid while arguing that the 
impugned provision was violative of Article 21, 
based his submission on Right to Human Dignity 
as a facet of Article 21. He also emphasised that 
the concept of human dignity was different from 
Right to Privacy. We have taken note of these 
arguments above. However, we feel all these 
aspects argued by the petitioners overlap with 
privacy is s ues as,different aspects of Article 21 
of the Constitution. Right to Let Alone has the 
shades of Right to Privacy and it is so held by 
the Court in R. Rajagopal &Anr. v. State of 
Tamil Nadu & Ors. - 


*** 

* « 

So is the Right to Informational Self Determination, 
as specifically spelled out by US Supreme Court in 

United States Department of Justice v. 
Reporters Committee for Freedom of the Press b 
Because of the aforesaid reasons and keeping in 
mind the principle of judicial discipline, we have 
made conscious c hoice not to deal with these 
aspects and it would be for the parties to raise 
these issues before the Constitution Bench. 
Accordingly, other arguments based on Articles 
14 and 19 of the Constitution as well as 
competence of the legislature to enact such law 
are being examined. 

i* 

9 

*** 


91) Thus, enrolment under Aadhaar is voluntary. 

However, it is a moot question as to wheth er for 



489 U.S. 749 (1989) 




4 

« 

obtaining benefits as prescribed under Section 7 
of the Aadhaar Act, it is mandatory to give 
Aadhaar number or not is a debatable issue 
which we are not addressing as this very issue 
i s squarely raised which is the subject matter of 
other writ petition filed and pending in this 
Court.” 


9. In the respectful submission of the answering respondent, 

i 

1 therefore, keeping in mind the principle of judicial discipline, 

the present applications also may not- be decided by a bench of 

two Hon'ble judges when the issues are required to be decided 

in these applications are already referred to and are pending 

before a larger bench. It would be apposite to refer to and rely 

* 

upon the observations of this Hon’ble Court made in its order 


elated 11.08.2015 in W.P.(C) 494/2012 while referring the 

) . 

cases to a larger bench:- 

“At the same time, we are also of the opinion that 
the institutional integrity and judicial 
discipline require that pronouncement made by 
l arger Benche s of, this Court cannot be 

i gnored by_ the _s maller _B enches without 

appropriately explaining the reasons for not 
following the pronouncements made by such larger 
Benches. With due respect to all the learned 
Judges who rendered the subsequent judgments - 
where right to privacy is asserted or referred to 
their Lordships concern for the liberty of human 
beings, we are of the humble opinion that there 
appears to be certain amount of apparent 
unresolved contradiction in the law declared by 
this Court.” 

* 

t 

i 

10. Moreover, once the present Writ Petitions have been referred to 



a larger bench, the applications for interim relief which touch 
upon the very same issues can only be decided by the larger 
ench. It is submitted that prior to the enactment of the Act, 
r hen the answering respondents have prayed for modification 



? 

of the interim order, dated 11.8.2015, upon the stiff opposition 
by the petitioners therein, the modification prayers were placed 
before the Bench of five Hon'ble Judges. There is no 
justification of the petitioners to pray for the interim orders 
yvhen the main issues are already referred to a larger bench. 


11. The t Petitioners had forcefully argued before the Coordinate 
Bench in the case of Binoy Viswam( supra) That the interim 
orders passed by this Hon'ble Court dated 11.08.2015 and 
1 5.10.2015 had held the Aadhaar scheme to be voluntary and 
that it cannot be made mandatory by the Government and that 
therefore making Aadhaar mandatory by way of an enactment 

i 

is a violation of the above interim orders. Similar arguments 

have been advanced qua the Aadhaar Act, 2016 in the present 

petitions as well. This Hon’ble Court has considered these 

arguments which were recorded at Para 13 and 14 and has 

given *its findings at Para 94 of the Judgment. The relevant 

extract of the above Paras are as follows: 

“13) The petitioner herein, laying stress on the 
above orders, plead that from a perusal of the 
various interim orders passed by this Court it is 
amply clear that the Court has reiterated the 
position that although there is no interim order 
against the collection of information from the 
citizens for the purpose of enfolment for Aadhaar, 
the scheme is purely voluntary and the same is not 
' to be made mandatory by the Government. 

14) While matters stood thus, the Government of 
Iqdia brought in a legislation to govern the Aadhaar 
Scheme with the enactment of the Aadhaar 
(Targeted Delivery of Financial and other subsidies, 
benefits and services) Act, 2016 (hereinafter 
referred to as the Aadhaar Act’). 

*** 



4 




£ 

94) Main emphasis, however, is on the plea that 
Parliament or any State legislature cannot pass a 
law that overrules a judgment thereby nullifying the 
said decision, that too without removing the basis 
of the decision. This argument appears to be 
attractive inasmuch as few orders are passed by 
this Court in pending writ petitions which are to the 
effect that the enrollment of Aadhaar' would be 
voluntary. However, it needs to be kept in mind 
that the orders have been passed in the 
petitions where Aadhaar scheme floated as an 
executive/administrative measure has been 
challenged. In those cases, the said orders are 
not passed in a case where the Court was dealing 
with a statute passed by the Parliament. 
Further, these are interim orders as the Court 
was of the opinion that till the matter is decided 
i inallydn the context of Right to Privacy issue, 
t he impl em entation of the said Aadhaar scheme 
would remain vol u ntary. In fact, the main issue 
as to whether Aadhaar card scheme whereby 
biometric data of an individual is collected 
violates Right to Privacy and, therefore, is 
offensive of Article 21 of the Constitution or not 
is yet to be decided. In the process, the 
Constitution Bench is also called upon to decide 
as to whether Right to Privacy is a part of Article 
21 of the Constitution at all. Therefore, no final 
decision has been taken. In a situation like this, 
it cannot be said that Parliament is precluded 
from or it is rendered incompetent to pass such 
a law. That apart, the argument of the 
petitioners is that the basis on which the 
aforesaid orders are passed has to be removed, 
which is not done. According to the petitioners, 
it could be done only by making Aadhaar Act 
compulsory. It is difficult to accept this 
contention for two reasons: first, when the 
orders passed by this Court which are relied 
upon by the petitioners were passed when 
Aadhaar Act was hot even enacted. Secondly, as 
already discussed in detail above, Aadhaar Act and 
* the law contained in Section 139AA of the Income 
Tax Act deal with two different situations and 
operate in different fields. This argument of 
l egislature incompetence also, therefore, has 
f ails. ” (sic) 




Therefore, this Hon’ble Court accepting the respondent’s 
rguments, has clearly held that interim orders of this Hon’ble 
ourt, where no. final decision has been taken, cannot render 
he Parliament incompetent nor preclude the Parliament from 




1 

passing a law. This Hon’ble Court also held that when the 
interim orders were passed by this Court, the Aadhaar Act was 

p 

* 

« 

not even enacted and therefore those interim orders were in the 

» 

context of a challenge to an administrative scheme. The above 
finding is equally binding in the present case and the earlier 
interim orders of this Hon’ble Court cannot be relied upon by 

1 i 

the Petitioners to suggest that the said orders could injunct the 
Parliament from passing the Aadhaar Act. The Aadhaar Act, 
2016, therefore, cannot be called into question for being in 

v 

violation of the earlier interim orders of this Hon’ble Court. 

13. This Hon’ble Court in the .judgment in Binoy Viswam (supra) 
has also held that apart from the two grounds viz.(l) lack of 
legislative competence and (2) violation of any fundamental 
rights guaranteed in Part III of the Constitution or any other 
constitutional provision, there is no third ground available to 
invalidate any piece of legislation. In this context the following 


findings of this Hon’ble Court may be quoted- 

“77. Furthermore, it also needs to be specifically 
noted that this Court emphasised that apart 
from the aforesaid two grounds no third ground 
i s available to invalidate any piece of legislation. 

In this behalf it would be apposite to reproduce the 
following observations from State of A.P. <fc Ors. v. 
McDowell & Co. & Ors., which is a judgment 
rendered by a three Judge Bench of this Court: 



“43...A law made by Parliament or the 
legislature can be struck down by courts on 
two grounds and two grounds alone, viz., (1) 
lack .of, ^Legislative competence and (2) 
violation of any of the fundamental rights 
guaranteed in Part III of the Constitution or 
of any other constitutional provision. There 
is no third ground. We do not wish to enter 
into a discussion of the concepts of 
procedural unreasonableness and 
' substantive unreasonableness — concepts 





inspired by the decisions of United States 
Supreme Court. Even in U.S.A., these 
concepts and in particular the concept of 
substantive due process have proved to be 
of unending controversy, the latest thinking 
tending towards a severe curtailment of this 
ground (substantive due process). The main 
criticism against the ground of substantive 
due process being that it seeks to set up the 
courts as arbiters of the wisdom of the 
legislature in enacting the particular piece of 
legislation. It is enough for us to say that by 
whatever name it is characterised,’ the 
ground of‘invalidation must fall within the 
four corners of the two grounds mentioned 
above. In other words, say, if an enactment 
is challenged as violative of Article 14, it can 
be struck down only if it is found that it is 
violative of the* equality clause/equal 
protection clause enshrined therein. 
Similarly, if an enactment is challenged as 
violative of any of the fundamental rights 
guaranteed by clauses (a) to (g) of Article 
19(1), it can be struck down only if it is 
found not saved by any of the clauses (2) to 
(6) of Article 19 and so on. No enactment can 
be struck down by just saying that it is 
arbitrary or unreasonable. Some or other 
constitutional infirmity has to be found 
before- invalidating an Act. An enactment 
cannot be struck down on the ground that 
court thinks it unjustified. Parliament and 
the legislatures, composed as they are of the 
representatives of the people, are supposed 
to know and be aware of the needs of the 
people and what is good and bad for them. 
The court cannot sit in judgment over their 
wisdom. In this connection, it should be 
remembered that even in the case of 
•administrative action, the scope of judicial 
review is limited to three grounds, viz., (i) 
unreasonableness, which can more 
appropriately be called irrationality, (ii) 
illegality and (iii) procedural impropriety (see 
Council of Civil Service Unions v. Minister 
for Civil Service [1985 AC 374 : (1984) 3 All 
ER 935 : (1984) 3 WLR 1174] which decision 
has been accepted by this Court as well). 
The applicability of doctrine of 
proportionality even in administrative law 
sphere is yet a debatable issue. (See the 
opinions of Lords. Lowry and Ackner in R. v. 
Secy, of State for Home Depth, ex p Brind 
[1991 AC 696 : (1991) 1 All ER 720] AC at 
766-67 and 762.) It would be rather odd if 
an enactment were to be struck down by 






applying the said principle when its 
applicability even in administrative law 
sphere is not fully and finally settled...” 

78. Another aspect in this context, which needs 
to be emphasized., is that a legislation cannot be 
declared unconst i tutional on the ground that it 
is ‘arbitrary’ inasmuch as examining as to 
whether a particular Act is arbitrary or not 
i mplies a value judgment and the courts do not 
examine the wisdom of legislative choices and, 
therefore, cannot undertake this exercise. This 
was so recognised in a recent judgment'of this 
Court Rajbala & Ors, v. State of Haryana & 
Ors . 2 wherein this Court held as under: 





“64. From the above extract from McDowell 
& Co. case it is clear that the courts in this 
country do not undertake the task of 
* declaring a piece of legislation 
unconstitutional on the ground that the 
legislation is “arbitrary” since such an 
exercise implies a value judgment and 
courts do not examine the wisdom of 
legislative choices unless the legislation is 
otherwise violative of some specific provision 
of the Constitution. To undertake such an 
examination would amount to virtually 
importing the doctrine of “substantive due 
process” employed by* the American 
- Supreme Court at an earlier point of time 
while examining the constitutionality of 
Indian legislation. As pointed out in the 
above extract, even in United States the 
doctrine is currently of doubtful legitimacy. 
This Court long back in A.S. Krishna v. 
State of Madras declared that the doctrine of 
due process has no application under the 
Indian Constitution As pointed out by 
Frankfurter, J., arbitrariness became a 
mantra. 

65.For the above reasons; we are of the 
opinion that it is not permissible for this 
Court* to declare a statute 
unconstitutional on the ground that it 
is 'arbitrary’.” 

79.-Same sentiments were expressed earlier by this 
Court in K.T. Plantation Private Limited <5& Anr . 3 

in the following words: 

“205. Plea of unreasonableness, 
arbitrariness, proportionality, etc. 
always raises an element of subjectivity 


.j 


(2016) 2 SCC 445 
Footnote 19 above. 





on which a court cannot strike down a 
statute or a statutory provision, 
especially when the right to property is 
no more a fundamental right. Otherwise 
the court will be substituting its wdsdom 
to that of the legislature, which is 
impermissible in our constitutional 
democracy.” 


A fortiorari, a law cannot be invalidated on the 
ground that the Legislature did not apply its 
mind or it was prompted by some improper 
motive.” 


.14. It is also pertinent to state that one of the arguments of the 
Petitioners in the present case as well relates to the “concept of 
limited government” which can be found at Page C Point No. 2 
& Page 37, Ground No. 8 wherein it is argued that the 

* 

impugned act is contrary to the concept of limited government. 

* 

It would be pertinent to note how the Coordinate Bench of this 
Hon’ble Court has considered and rejected the Petitioners’ 
argument on the concept of “limited government” in the other 

<r 

case and the same findings would be binding on this Hon’ble 

Court. The same can be gleaned from Paras 82-85 of the 

Judgment as extracted below: 

"83. Mr. Divan, however, made an earnest 
endeavour to further broaden this concept of 
‘limited Governriient* by giving an altogether 
different slant. He submitted that there are 
certain things that the States simply cannot do 
because the action fundamentally alters the 
relationship between the citizens and the State. 

I n this hue, he . submitted that it was 
impermissible for the State to undertake the 
exercise of collection of bio-metric data, 
including fingerprints and storing at a central 
depository as it puts the State in an extremely 
dominant position in relation to the individual 
citizens. He also submitted that it will put the 
State in a position to target an individual and 
engage in surveillance thereby depriving or 
withholding the enjoyment of his rights and 
entitlements, which is totally impermissible in 
a country where governance of the State of 







founded on the concept of ‘limited 
Government’. Again, this concept of limited 
government is woven, around Article 21 of the 
Constitution. i 



84. Undoubtedly, we are in the era of liberalised 
democracy. In a democratic society governed by the 
Constitution, there is a strong trend towards the 
Constitutionalisation of democratic politics, where 
the actions of democratic elected Government are 
judged in the light of the Constitution. In this 
context, judiciary assumes the role of protector of 
the Constitution and democracy, being the ultimate 
arbiter in all matters involving the interpretation of 
the Constitution. 


85. Having said so, when it comes to exercising 
the power of judicial review of a legislation, the 
scope of such a power has to be kept in mind 
and the power is to be exercised within the 
limited sphere assigned to the judiciary to 
undertake the judicial review. This has already 
been mentioned above. Therefore, unless the 
petitioner demonstrates that the Parliament, in 
enacting the impugned provision, has exceeded 
its power prescribed in the Constitution or this 
provision violates any of the provision, the 
argument predicated on ‘limited governance’ 
will not succeed . One of the aforesaid ingredients 
needs to be established by the petitioners in order 
to succeed.” 


15. This Hon’ble Court in its judgment in Binoy Viswam has also 
taken note of and rendered its findings on the objectives and 

9 

provisions of Aadhaar Act, 2016, which can be summarized as 
follows: 


a. While enrollment for Aadhaar maybe voluntary, however 
for the purpose of obtaining benefits, proof of Aadhaar 
may be necessary as per Section 7 of the Act. However 
this very issue is square fy raised in the Writ Petition 



pending before the larger bench and therefore the same 
was not touched by the Coordinate Bench as evident from 
Para 91 of the Judgment as follows: 

‘Thus, enrolment under Aadhaar is 

* 

voluntary. However, it is a moot question as 




to whether for obtaining benefits as 
prescribed under Section 7 of the Aadhaar 
Act, it is mandatory to give Aadhaar number 
or not is a debatable issue which we are not 
addressing as this very issue is squarely 
raised which is'the subject matter of other 
writ petition filed and pending in this Court.” 


b. That an argument predicated on Article 14 was advanced 
by the Petitioners that the mandate for enrpllment under 
Aadhaar by law created two impermissible classes - one 
class of those who volunteered to enroll themselves under ‘ 

the Aadhaar scheme and the other class of those who did 

* 

not want to do so.]The Coordinate Bench in its judgment 

, has rejected this argument as fallacious and held that 

merely because a section of persons oppose the law, 

would not.' mean that it has become a separate class in 

itself. The findings to this effect can be found in Paras 

1.01 to 102 as reproduced below- 

“101. Another argument predicated on Article 
14 advanced by Mr. Divan was that it was 
discriminatory in nature as it created two 
classes; one class of those who volunteered to 
enrol themselves under Aadhaar scheme and 
other class of those who did not want it to be 
so. It was further submitted that in this 
•manner this provision had the effect of 
creating an artificial class of those who object 
to Aadhaar scheme as self conscious persons. 

This is a fal l acious argument. 

102) Validity of a legislative act cannot be 
challenged by creating artificial classes by 
those who are objecting to the said 
provision and predicating the argument of 
discrimination on that basis. When a law 
is made, all those who are covered by that 
law are supposed to follow the same. No 
doubt, it is the right of a citizen to approach 
the Court and question the constitutional 
validity of a particular -law enacted by the 
Legislature. However, nlerelv because a 
section of persons opposes the law, would 
not mean that it has become a separate 






i 



class by itself. Two classes, cannot be 
created on this basis, namely, one of those 
' who want to be covered by the scheme, and 
others who do not want to be covered 
thereby. If such a proposition is accepted, 
every legislation would be prone to 
challenge on the ground of discrimination. 

As far as plea of discrimination is 
concerned, it has to be raised by showing 
that the impugned law creates two classes 
without any reasonable classification and 
treats them differentl y.” 

Therefore the above argument on Article 14 will be 

equally applicable to the present case and cannot be 

* 

sustained in light of the findings of this Hon’ble Court in 
Binoy Viswam (Supra). 

c. This Hon’ble Court in its judgment has also rendered its 
findings on the objectives of Aadhaar, while examining 
the reasonable nexus of the law with the object sought to 
be achieved, which would be directly applicable to the 
present case as well. The relevant extract reads as 

r i 

follows- 

I 

* 

“118. By making use of the technology, a 
method is sought to be devised, in the 
form of Aadhaar, whereby identity of a 
person is ascertained in a flawless manner 
without giving any l eeway to any 
indi vidual to resort to dubious practices of 
showing multiple identities or fictitious 
identities. That is why it is given the 
nomenclature ‘unique identity’. It is aimed 
at securing advantages on different levels 
some of which are described, in brief, below; 

(i) In the first instance, as a welfare and 
democratic State, it becomes the duty of any 
responsible Government to come out with 
welfare schemes for the upliftment of poverty 
stricken and marginalised sections of the 
society. This is even the ethos of Indian 
Constitution which casts a duty on the State, 
in the form of ‘Directive Principles of State 
Policy’, to take adequate and effective steps 
for betterment of such underprivileged ■ 
classes. State is bound to take adequate 
measures to provide education, health care, 





employment and even cultural opportunities 
and social standing to these deprived and 
underprivileged classes. It is not that 
Government has not taken steps in this 
direction from time to time. At the same time, 
however, harsh reality is that benefits of these 
schemes have not reached those ^persons for 
whom that are actually meant. 

India has achieved significant economic 
growth since independence. In particular, 
rapid economic growth has been achieved in 
the last 25 years, after the country adopted 
the policy of liberalisation and entered the era 
of, what is known as, globalisation. Economic 
growth in the last decade has been 
phenomenal and for many years, the Indian 
economy grew at highest rate in the world. At 
the same time, it is also a fact that in spite of 
significant political and economic success 
which has proved to be sound and 
sustainable, the benefits thereof have not 
percolated down to the poor and the poorest. 
In fact, such benefits are reaped primarily by 
rich and upper middle classes, resulting into 
widening the gap between the rich and the 
poor. Jean ; Dreze & Amartya Sen eithly 
narrate the position as under: 

“Since India’s recent record of fast 
economic growth is often 
celebrated, with good reason, it is 
extremely important to point to 
the fact that the societal reach of 
economic progress in India has 
been remarkably limited. It is not 
only that the income distribution 
has been getting more unequal in 
recent years (a characteristic that 
India shares with China), but also 
that’the rapid rise in real wages in 
China from which the working 
classes have benefited greatly is 
not matched at all by India’s 
relatively stagnant real wages. No 
less importantly, the public 
revenue generated by rapid 
economic growth 'has not been 
used to expand the social and 
physical infrastructure in a 
determined and well-planned way 
(in this India is left far behind by 
China). There is also a continued 
lack of essential social services 
(from schooling and health care to 
the provision of safe water and 



drainage) for a huge part of the 
population, , . . India has been 
climbing up the ladder of per 
capita income while slipping down 
the slope of social indicators.” 

It is in this context that not only T sustainable 
development is needed which takes care of 
integrating growth and development, thereby 
ensuring that the benefit of economic growth 
is reaped by every citizen of this country, it 
also becomes the duty of the Government in a 
welfare State to come out with various welfare 
schemes which not only take care of 
immediate needs of the deprived class but 
also ensure that adequate opportunities are 
provided to such persons to enable them to 
make their lives better, economically as well 
as socially, As mentioned above, various 
welfare schemes are, in fact, devised and 
floated from time to time by the 
Government, keeping aside substantial 
amount of money earmarked for spending 
on socially and economically backward 
classes.* However, for various reasons 
including corruption, actual benefit does 
not reach those who are supposed to 
receive such benefits. One of the main 
reasons is failure to identify these persons 
for lack of means by which identity could 
be established of such genuine needy class. 
Resultantly, lots of ghosts and duplicate 
beneficiaries are able to take undue and 
impermissible benefits. A former Prime 
Minister of this country 4 has gone to 
record to say that out of one rupee spent 
by the Government for welfare of the 
downtrodden, only 15 paisa thereof 
actually reaches those persons for whom it 
is meant. It cannot be doubted that with 
UID/Aadhaar much of the malaise in this 
field can be taken care of, 

• 

(ii)Menace of Corruption and black money has 
reached alarming proportion in this country. 
It is eating into the economic progress which 
the country is otherwise achieving. It is not 
necessary to go into the various reasons for 
this menace. However, it would be pertinent 
to comment that even as per the observations 
of the Special Investigation Team (SIT) on 
black money headed by Justice M.B. Shah, 
one of the reasons is that persons have the 
option to quote their PAN or UID or passport 






i 


number or driving licence or any other proof 
of identity while entering into 
financial/business transactions. Because of 
this multiple methods of giving proofs of- 
identity, there is no mechanism/system at 
present to collect the data available with each 
of the independent proofs of ID? For this 
reason, even SIT suggested that these 
databases be interconnected. To the same 
effect is the recommendation of the 
Committee headed by Chairman, CBDT on 
measures to tackle black money in India and 
abroad which also discusses the problem of 
money-laundering being done to evade taxes 
under the garb of shell companies by the 
persons who hold multiple bogus PAN 
numbers under different names or variations 
of their names. That can be possible if one 
uniform proof of identity, namely, UID is 
adopted. It may go a long way to check 
and minimise the said malaise. 


l<k 


(iii) Thirdly. Aadhaar or UID. which has 
come to be known as most advanced and 
sophisticated infrastructure , may facilitate 
law enforcement agencies . . . 



119. Wether such a scheme should remain 
voluntary or it can be made mandatory 
imposing compulsiveness on the people to be 
covered by Aadhaar is'a different question 
which shall be addressed at the appiopiiate 

stage . At this juncture, it is _only 

emphasised that malafides cannot be 
attributed t o this scheme. In any case, we 
are concerned with the vires of Section 139AA 
of the Income Tax. Act, 1961 which is a 
statutory provision. This Court is, thus, 
dealing with the aspect of judicial review of 
legislation. Insofar as this provision is 
concerned, the explanation of the 
respondents in the counter affidavit, which 
has already been reproduced above, is that 
the primary purpose of introducing this 
provision wa.s to take care of the problem of 
multiple PAN cards obtained in fictitious 
.names. Such multiple cards in fictitious 
names are obtained with the motive of 
indulging into money laundering, tax evasion, 
creation and channelising of black money.^ It 
is mentioned that in a de-duplication 
exercises, 11.35 lakhs cases of duplicate 
PANs/fraudulent PANs have been detected. 
Out of these, around 10.52 lakhs pertain to 
individual assessees. Parliament in its 
wisdom thought that one PAN to one 







person can be ensured by adopting 
Aadhaar f o r allotment of PAN to 
Individuals, As of today, that is the only 
method avai l able i.e. by seeding of existing 
PAN with Aadhaar, It* is perceived as the 
best method, and the only robust method 
of de-duplication of PAN database. It is 
claimed by the respondents that the instance 
of duplicate Aadhaar is almost non-existent. 
It is also claimed that seeding of PAN with 
Aadhaar may contribute to widening of the 
tax base as well, by checking the tax evasions 
and bringing in to tax hold those persons who 
are liable to pay tax but deliberately avoid 
doing so. It would be apposite to quote the 
following discussion by the Comptroller and 
Auditor General in its report for the year 
2011 ;..• 

, , *** 





121. The respondents have also claimed 
that linking of Aadhaar with PAN is 
consistent with India’s international 
obligations and goals. In this behalf, it is 
pointed out that India has signed the Inter- 
Governmental Agreement (IGA) with the 
USA on July 9, 2015, for Improving 
International Tax Compliance and 
implementing the Foreign Account Tax 
Compliance Act (FATCA). . . . In a large 
number of cases (more than 10 lac PAN every 
year) it is seen that the PAN holder neither 
submits the response and in many cases the 
letters are return unserved. Field verification 
by fields formations have found that in a large 
number of. cases, the PAN holder is 
untraceable. - In many cases, the PAN holder 
mentions that the transaction does not relate 
to them. There is a need to strengthen PAN 
by linking it with Aadhaar/biometric 
information to prevent use of wrong PAN 
for high value transactions. 

122. While considering the aforesaid 
submission of the petitioners, one has to keep 
in mind the aforesaid purpose of the 
impugned provision and what it seeks to 
achieve. The provision is aimed at.seeding 
Aadhaar with PAN.- We have already held, 
while considering the submission based on 
Article 14 of the Constitution, that the 
provision is based on reasonable 
classification and that has nexus with the 
objective sought to be achieved. One of the 
main objectives is to de-duplicate PA N 
cards and t o bring a situation where one 





person is flot having more than one PAN 
card or a person is not able to get PAN 
cards in assumed/fictitious names. In 
such a scenario, if those persons who 
violate Section 139AA of the Act without 
any consequence, the provision shall be 
rendered toothless. It is the prerogative of 
the Legislature to make penal provisions 
for violation of any law made by it. In the 
instant case, requirement of givin g 
Aadhaar enrolment number to the 
designated authority or stating this 
number in the income tax returns is 
directly connected with the issue of 
duplicate/fake PANs.” 


d. Therefore, from the above findings, the following 
principles clearly emerge: 

1. That the Coordinate Bench of this Hon’ble 

. Court has approved the objectives behind ' 

« 

Aadhaar in order to establish and ascertain 
the unique identity of a person by ensuring 
that duplicate or fictitious identities are 
weeded out. 

2. It has also held that it cannot be doubted that 

i 

* 

with UID/Aadhaar much of the malaise in the 


oTa> 


s 

1ANJU SHARMA\ , 
Delhi \* ) ' 
No. 8414 
> ‘A's of Expiry 
/.5 May 2021 

.>—40- 

, or: 


socio-economic circumstances of the deprived 
and underprivileged classes can be addressed 
by ensuring that ghosts and duplicate 
beneficiaries are not taking away the benefits 
intended for the genuine and needy class of 
people for whose benefits various welfare 

* 1 

schemes are devised and floated by the 
government 

3. The Coordinate bench has also rejected the 


Petitioner’s 


arguments 


on 


insecure 




^v, ' . technology and held that Aadhaar or UID is 

“known as most advanced and sophisticated 
infrastructure”. 

4, It has also held that if one’ uniform proof of 
Identity namely UID is adopted, it may go a 
long way to check and minimize the problem 

. 'of ‘tax! evasion under the garb of shell 

companies by persons who hold multiple 
» * 

bogus PAN numbers. 

5. It has also been held that malafides cannot be 


attributed to the legislative and / or quasi 
legislative acts and also therefore the Aadhaar 
Scheme and that as of today duplicate or 
bogus PAN numbers can be detected by 
seeding of existing PAN with Aadhaar and it is 

w 

I 

* 

perceived as the best method and the only 
robust method of de-duplication of PAN 
Database. 


A Copy of the Judgment dated 09.06.2017 in Binoy Viswam 
v. Union of India & Ors. (Writ Petition (C) No. 247 of 2017 is 

marked as Annexure R - 4. (i'll - 23 3 J) 



16. 



At Para 3 of the Rejoinder the Petitioners claim that Aadhaar is 
insecure, unreliable, unnecessary and inappropriate 
technology project. It is humbly submitted that all the above 
allegations are denied as incorrect, false, misplaced and 
uneducated for the following reasons. In any event, all of the 
below, are strictly within the domain of policy and cannot be 
questioned simply because according to the petitioners a better 



s ,^v. system or a better policv can be or could have been adopted. It 

is also alleged that Aadhaar-leads to surveillance, breach of 
privacy and identity theft of individuals and is therefore 
violative of Article 14, Ip and 21 of the individuals. The issues 

V 

relating to (A) Security of Aadhaar; (B) Coverage of Aadhaar; (C) 
Necessity and appropriateness of Aadhaar; (D) Privacy 

i 

' * 

Safeguards are dealt under different heads hereinafter, which . 

would allay any fears that the Petitioners may have regarding 
. the same. 

i 

\ 

* 

A. SECURITY OF AADHAAR 

17. Legislative Safeguards on Data Security: 

a. Chapter VI of the Aadhaar Act, 2016 deals with protection 

of information. Section 28 of the Act pertains to security 

I 

and confidentiality of the information wherein the 
Authority is statutorily required to ensure the security of 
identity information and authentication records of 
individuals including information stored in the Cential 
Identity Data Repository and the same must be secuied 
and protected against access, use or disclosure not 

permitted under the Act and against accidental or 

a 

•} 

;| intentional destruction, loss or damage. The Authority is 

1 * 

\ also statutorily required to ensure that the agencies, 

; consultants, advisors or other persons appointed or 

engaged for performing any function of the Authority 

under this Act, have in place appropriate technical and 

organizational security measures for the infoimation. 
Section 28 of the Act is extracted as hereinbelow - 







2 . 3 > 

“28.(1) The Authority shall ensure the security of 
identity information andauthentication records 
of individuals. 

(2) Subject to the provisions of this Act, the 
Authority shall ensure confidentiality ofidentity 
information and authentication records of 
individuals. 


(3) The Authority shall take all necessary 
measures to ensure that the information inthe 
possession or control of the .Authority, 
including information stored in the 
Cen trail d entities Data Repository, is secured 
and protected against access, use or disclosure 
notpermitted under this Act or regulations made 
thereunder, and against accidental or 
intentionaldestruction, loss or damage. 

(4) Without prejudice to sub-sections (1) and (2), 
the Authority shall— 

(a) adopt and implement appropriate technical 
and organizational securitymeasures; 

(b) ensure that the agencies, consultants, 
advisors or other persons appointedor engaged 
for performing any function of the Authority 
under this Act, have in place appropriate 
technical and organisational security measure's 
for the information; and 

(c) ensure that the agreements or arrangements 
entered into with such agencies,consultants, 
advisors or other persons, impose obligations 
equivalent to thoseimposed on the Authority 
under this Act, and require such agencies, 
consultants,advisors and other persons to act 
only on instructions from the Authority. 



(5) Notwithstanding anything contained in any 

other law for the time being in force,and save as 

otherwise provided in this Act, the Authority 

or any of its officers or otheremployees or any 

'agency that maintains the Central Identities 

Data Repository shall not,whether during his 

service or thereafter, reveal any information 

stored in the Central IdentitiesData Repository 

or authentication record to anyone: 

* 

Provided that an Aadhaar number holder may 
request the Authority to provide accessto his 
identity information excluding his core biometric 
information in such manner as maybe specified 
by regulations.” 




* 





Therefore to suggest that the enrollment agencies or any 
other person performing any function under the Act is 
not bound by security obligations is ex facie incorrect and 
contrary to the legal-safeguards in place. 


b. Section..29 of the Act provides a complete prohibition on 

» 

Sharing of core biometric information with anyone for any 
reason whatsoever. Likewise, no identity information can 
be used for any purpose other than that specified to the 
individual at the time of submitting such identity 

information for authentication. Further, such identity 

* 

information cannot even be disclosed except for the prior 

consent of the individual to whom such information 

relates. In fact Section 29(4) states that no Aadhaar 

number or core biometric information shall be published 

displayed or posted publicly except for the purposes as 

maybe specified by the Regulations. It is needless to state 

that if any governmental agency discloses an Aadhaar 

% 

number of any.other identity information contrary to the 
Provisions of Section 29, necessary action under the Act 
or even as a departmental action can be initiated against 
the errant official or individual, as the case maybe. 
However, potential misuse or violation of the law certainly 
cannot be a ground to question the vires of the Act. 
Section 29 of the Aadhaar Act is extracted hereinafter for 



convenience- 


r 

“29.(l)No core' biometric information, collected or 
created under this Act, shall be— 







(a) . shared ’ with anyone for any reason 
whatsoever; or 

(b) used for any purpose other than generation 
of Aadhaar numbers and authentication under 
this Act. 

(2) The identity information, other than core 
biometric information, collected or created under 
this Act may be shared only in accordance with 
the provisions of this Act and in such manner as 
may he specified by regulations. 

(3) No identity information available with a 
requesting entity shall be— 

(a) used for any purpose, other than that 
specified to. the individual at the time of 
submitting j any identity information for 
authentication; or 

(b) disclosed further, except with the prior 
consent of the individual to whom such 
information relates. 

(4) No Aadhaar number or core biometric 
information collected or created under this Act 
in respect of an Aadhaar number holder shall be 
published, displayed or posted publicly, except 
for the purposes as may be specified by 
regulations.” 


w 

c. That Chapter VII 6f the Act contains provisions relating 

/ 

to offences and penalties which maybe quoted as follows:- 
“CHAPTER VII - OFFENCESANDPENALTIES 

* 4 

34. Whoever impersonates or attempts to 
impersonate another person, whether dead or 
alive, real or imaginary, by providing any false 
demographic information or biometric 
information, shall be punishable with 
imprisonment for a Term which may extend to 
three years or with a fine which may extend to 
ten thousand rupees or with both. 

35. Whoever, with the intention of causing harm 
or mischief to an Aadhaar number holder, or 
with the intention of appropriating the 
identity of an Aadhaar number holder 
changes or attempts to change any demographic 
information or biometric, information of an 
Aadhaar number holder by impersonating or 
attempting to impersonate another person, 
dead or alive, real or imaginary, shall be 
punishable with imprisonment for a term which 
may extend to three years and shall also be liable 





to a fine which may extend to ten thousand 
rupees. 

36. Whoever, not being authorized to collect 
identity information under the provisionsof this 
Act, by words, conduct or demeanour pretends 
that he is authorised to do so, shallbe 
punishable with imprisonment for a term which 
may extend to three years or with a finewhich 
may extend to ten thousand rupees or, in the 
case of a company, with a fine whichmay extend 
to one lakh rupees or with both. 

37. Whoever, intentionally discloses, transmits, 
copies or otherwise disseminatesany identity 
information collected in the course of 
enrolment or authentication to any person not 
authorised under this Act or regulations made 
thereunder or in contravention of any agreement 
or arrangement entered into pursuant to the 
provisions .of this Act, shall be punishable with 
imprisonment for a term which may extend to 
three years or with a fine which may extend to 
ten thousand rupees or, in the case of a 
company, with a fine whichmay extend to one 
lakh rupees or with both. 


38. Whoever, not being authorised by the 
Authority, intentionally,— 




(a) accesses or secures access to the Central 
Identities Data Repository; 

(b) downloads, .copies or extracts any data 
from the Central Identities Data Repository or 
stored in any removable storage medium; 

(c) introduces or causes to be introduced any 
virus or other computer contaminant in the 
Central Identities Data Repositoiy; 

(d) damages or causes to be damaged the data in 
the Central Identities Data Repository; 

(e) disrupts or causes disruption of the 
access to the Central Identities Data 
Repository; 

(f) denies or causes a denial of access . to 
any person who is authorised to access the 
Central Identities Data Repository; 

(g) reveals arjy information in contravention of 
sub-section (5) of section 28, or shares, uses or. 
displays information in contravention of 
section 29 or assists any person in any of the 
aforementioned acts; 

(h) destroys, deletes or alters any information 
stored in any removable storage media or in the 
Central Identities Data Repository or diminishes 
its value or utility or affects it injuriously by any 
means; or 





21 

(i) steals, conceals, destroys or alters or causes 
any person to steal, conceal, destroy or alter any 
computer source code used by the Authority 
with an intention to cause damage, 

shall be punishable with imprisonment for a 
term which may extend to three years and 
shallalso be liable to a fine which shall not be 
less than ten lakh rupees. 

Explanation\ — For the purposes of this 
section, the expressions “computer 
contaminant”, “computer virus” and' “damage” 
shall have the meanings respectively assigned 
to them in the Explanation to section 43 of the 
Information Technology Act, 2000,and the 
expression “computer source code” shall have 
the meaning.assigned to it in the Explanation 
to section 65 of the said Act. 

39. Whoever, not being authorised by the 
Authority, uses or tampers with the. data in the 
Central Identities Data Repository or in any 
removable storage medium with the intent of 
modifying information relating to Aadhaar 
number holder dr discovering any information 
thereof, shall be punishable with imprisonment 
for a term which may extend to three years and 
shall also be liable to a fine which may extend to 

• ten thousand rupees, 

40. Whoever, being a requesting entity, uses the 
identity information of an individual in 
contravention of sub-section (3) of section 8, 
shall be punishable with imprisonment which 
may extend to three years or with a fine which 
may extend to ten thousand rupees or, in the 
case of a company, with a fine which may extend 
to one lakh rupees or with both. 

41. Whoever, being, an enrolling agency or a 
requesting entity, fails to comply with the 
requirements of sub-section (2) of section 3 
or sub-section (3) of section 8, shall be 
punishable with imprisonment which may 
extend to one year or with a fine which may 
extend to ten thousand rupees or, in the case of 
a company, with a fine which may extend to one 
lakh rupees or with both. 

42. Whoever commits an offence under this 
Act or any rules or regulations made 
thereunder for which no specific penalty is 
provided elsewhere than this section, shall be 
punishable with imprisonment for a term which 
may extend to one year or with a fine whichmay 




2 ^ ' 

extend to twenty-five thousand rupees or, in the 
case of a company, with a fine which may extend 
to one lakh rupees, or with both. 

43. (1) Where an offence under this Act has been 
committed by a company, every person who at 
the time the offence was committed was in 
charge of, and was responsible to, the company 
for the conduct of the business of the company, 
as well as the company, shall be deemed to be - 
guilty of the offence and shall be liable to 
be proceeded against and, punished 
accordingly: 


Provided that nothing contained in this sub¬ 
section shall render any such person liable to 
any punishment provided in this Act if he proves 
that the offence was committed without his 
knowledge or that he had exercised all due 
diligence to prevent the Commission of such 
offence. 


(2) Notwithstanding anything contained in sub¬ 
section (1), where any offence under this Act 
has been committed by a company and it is 
proved that the offence has been committed 
with the consent or connivance of, or is 
attributable to, any neglect on the part of any 
director, manager, secretary or other officer of 
the company, such director, manager, secretary 
or other officer shall also be deemed to be guilty 
of the offence and shall be liable to be proceeded 
against and punished accordingly. 

Explanation. — For the purposes of this 
section— 

(a) “company” means anybody corporate and 
includes a firm or other association of 
individuals; and 

(b) “director’!, in relation to a firm, means a 
partner in the firm. 


44. (1) Subject to the provisions of sub-section 
(2),the provisions of this Act shall apply also to 
an}^ offence or contravention committed 
outside India by any person, irrespective of his 
nationality. 



(2) For the purposes of sub-section (1), the 
provisions of this Act shall apply to any offence 
or contravention committed outside India by 
Any person, if the act or conduct constituting 
the offence or contravention involves any data in 
the Central Identities Data Repository. 




45. Notwithstanding anything contained in the 
Code of Criminal Procedure, 1973, a police 
officer not below the rank of Inspector of Police 

shall investigate any offence under this Act. 

\ 

46, No penalty imposed under this Act shall 
prevent the imposition of any other penalty or 
punishment under any other law for the time 
being in force.” 


d. This Hon’ble Courts attention may also be drawn to 
Aadhaar (Data Security) Regulations, 2016 which was 
notified on 12.09.2016 and came into force on 
14.09.2016. The relevant security obligations on various 
stakeholders under the subordinate legislation are as 


follows - 


'“3. Measures' for ensuring information 
security.-- 


(1) The Authority may specify an information 
security policy setting out inter alia the technical 
and organisational measures to be adopted by 
the Authority and its personnel, and also 
security measures to be adopted by agencies, 
advisors, consultants and other service 
providers engaged by the Authority, registrar, 
enrolling agency, requesting entities, and 
Authentication Sendee Agencies. 

(2) Such information security policy may provide 
for:— 



(a) identifying and maintaining an 
inventory of assets associated with the 
information and information processing 
facilities; 

(b) implementing controls to prevent and 
detect any loss, damage, theft or 
compromise of the assets; 

(c) allowing only controlled access to 
confidential information; 

(d) implementing controls to detect and 
protect .against virus/malwares; 

* 

(e) a change management process to 
ensure information security, is maintained 
during changes; 










3o 

(f) a patch management process to protect 
information systems from vulnerabilities 
and security risks; 

i* 

(g) a robust monitoring process to identify 
unusual events and patterns that could 
impact security and performance of 
information systems and a proper 
reporting and mitigation process; 

(h) encryption of data packets containing 
biometrics, and enabling decryption only 
in secured locations; 

(i) partitioning of Cl DR network into zones 

based on risk and trust; 

■ * 

(j) deploying necessary technical controls 
for protecting CIDR network; 

(k) service continuity in case of a disaster; 

(l) monitoring of equipment, systems and 
networks; 

(m) measures for fraud prevention and 
effective remedies in case of fraud; 

(n) requirement of entering into non¬ 
disclosure agreements with the personnel; 

(o) provisions for audit of internal systems 
and networks; 

(p) restrictions on personnel relating to 
processes, systems and networks. 

(q) inclusion of security and confidentiality 
obligations in the agreements ^ or 
arrangements with the agencies, 

' consultants, advisors or other persons 
engaged by the Authority. 

(3) The Authority shall monitor compliance with 
the information security policy and other 
security requirements through internal audits or 
through independent agencies. 

(4) The Authority shall designate an officer as 
Chief Information Security Officer for 
disseminating and monitoring the information 

’ security policy and other security-related 
programmes and initiatives of the Authority. 

4. Security obligations of the personnel.- 





2>l 

(1) The personnel shall comply with the 
information security policy, and other policies, 
guidelines, procedures, etc. issued by the 
Authority from time to time. 

(2) Without prejudice to any action that may be 
taken under the Act, personnel may be liable to 
action in accordance with procedures specified 
by tire Authority for this purpose: 

i 

» 

* 

Provided that no such action shall, be taken 
without giving the concerned personnel a 
reasonable opportunity of being heard. 

5. Security obligations of service providers, 
etc.-- 

The agencies, consultants, advisors and other 
service providers engaged by the Authority for 
discharging any function relating to its 
processes shall: 

(a) ensure # compliance with the information 
security policy specified by the Authority; 

(b) periodically report compliance with the 
information security policy and contractual 
requirements, as required by the Authority; 

(c) report promptly to the Authority any security 
incidents affecting the confidentiality, integrity 
and availability of information related to the 
Authority's functions; 

(d) ensure that records related to the Authority 
shall be protected from loss, destruction, 
falsification, unauthorised access and 
unauthorised release; 

(e) ensure confidentiality obligations are 
maintained during the term and on termination 
of the agreement; 

(f) ensure that appropriate security and 
confidentiality obligations are provided for in 
their agreements with their employees and staff 
mem bers; 

(g) ensure that the. employees having physical 
access to CIDR data centers and logical access 
to CIDR data centers undergo necessary 
background checks; 

(h) define the security perimeters holding 
sensitive information, and ensure only 





3 ' 2 _ 

authorised individuals are allowed access to 
such areas to prevent any data leakage or 
misuse; and 

(i) where they are involved in the handling of the 
biometric data, ensure that they use only those 
biometric devices which .are certified by a 
certification body as identified by the Authority 
and ensure that appropriate systems are built to 
ensure security of the biometric data. 

7. Confidentiality. - 

■ ► i 

All procedures, orders, processes, standards and 
protocols related to security, which are 
designated as confidential by the Authority, shall 
be treated as confidential by all its personnel and 
shall be disclosed to the concerned parties only 
to the extent required for giving effect to the 
security measures. The nature of information 
that cannot be shared outside the Authority 
unless mandated under the Act includes, but 
not limited to, Information in CIDR, Technology 
details, Network Architecture, Information 
security policy and processes, software codes, 
internal reports, audit and assessment reports, 
applications; details, asset details, contractual 
agreements,’ present and future planned 
infrastructure details, protection services, and 
capabilities of the system.” 

* 

It is also pertinent to state that the UIDAI’s Cehtral 

Identities Data Repository (CIDR) in which the data is 


stored has been declared as “Protected System” under 


Section 70 of the Information Technology Act, 2000 

whereby the government can declare any computer 

resource, which directly or indirectly affects the facility of 

♦ 

critical information infrastructure to be a protected 
system. The Explanation to Sec. 70 defines Critical 
Information Infrastructure to mean the computer 

4 

resource, the incapacitation or destruction of which shall 
have debilitating impact on national security, economy, 

« 

public health or safety. Section 70 (3) states that any 
person who secures access or attempts to secure access 





33 

to a protected system in contravention of the provisions 

of this section shall be punished with imprisonment upto 

10 years and will also be liable to fine. Therefore, by 

declaring the UIDAI and CIDR as critical information 

infrastructure the Government has underlined its 

\ 

emphasis on security and further bolstered the security 

* 

regime surrounding Aadhaar wherein any breach will be 

met with the strictest punishment provided for under the 
» 

law. Therefore the Petitioner’s argument that Aadhaar is 
an insecure technology project is specious and devoid of 

any substance. 

A Copy of the notification' dated 11.12.2015 issued by 

Ministry of Communication & Information Technology is 

annexed herewith and is marked as Annexure —R-5. 
( 23 ^- 

18. Technological Safeguards on Data Security:- 

It is submitted that the technical architectuie of Aadhaai 

has been structured in such a way, to ensure cleai data 

* 

verification, authentication and de-duplication, while 

ensuring a high, level of privacy and information 
■ • . 

security. The collection of minimal biometric data and 

■ 

fully secure end to end encryption, as well as logical, 
partitioning, firewalling and anonymisation of decrypted 
biometric-data protects the privacy of individuals as also 
prevents tampering of biometric information. 

It is submitted that the UIDAIhas taken all necessaiy 
safeguards, starting .from providing standaidized 





34 

software that encrypts the entire data even before saving 
it to any disk, protecting data using tamper proofing, 
identifying* every operator in all and every enrolment, 

r 

identifying every one of the thousands of machines using 
a unique machine registration process, which ensures 
every encrypted data is tracked. 

c. The data collection software, termed as the Enrolment 
Client, is created and managed centrally by the UIDAI. 
Any user of the client needs to authenticate each 

enrolment, with a ;biometric sign off, which is a highly 

* 

i 

secure confirmation. The biometric information is 

encrypted and only then is it stored. Hence the operator 

t has no access to this information. The encryption system 

follows a. private key/public model. The private key is 

available only with UIDAIat the processing location called 

the Central Identities Data Repository (GIDR). Hence, 

even if data packets are lost or stolen, the biometric 

information regarding the same cannot be accessed and 

hence cannot be misused. 

♦ • 

. d. The biometrics available with UIDAIare not shared with 

anyone. Only a ’Yes/No' response is given at the time of 

‘biometric authentication -of the person. UIDAI has an 
* • 

active data security policy that addresses all aspect of 
data collection, data handling and data storage. It is 
denied that the biometric information used can be 
accessed or used without any protection to the individual 




3iT 

or that it can fall in the hands of foreign Governments. 
The security and integrity of the data has been enshrined 
in the Strategy. 

7 

e. Further, there is no question of facilitating any access to 

personal data of residents. Data access is only given 

* 

when due authorisation is provided by the resident. The 
minimal demographic data which is collected under 
Aadhaar in respect of enrolees is actually already 
available with several agencies in the country and some 
of it is also available in various public domains (For e.g. 

* 

in the form of electoral rolls, PAN card, telephone 
directories etc.). 

f. It is submitted that that UIDAI has taken fool-proof 
measures to ensure end-to-end security of resident data, 
spanning from full, encryption of resident data at the time 

t 

< 

. of capture, tamper resistance, physical security, access 
control, network security, stringent audit mechanism, 
24x7 monitoring, and measures such as data partitioning 
and data encryption within UIDAI controlled data 
centers. In particular, at the enrolment centers and field 
operations level, the following safeguards have been 
implemented. 

Standard enrolment software for all its registrars, to 

% 

ensure uniformity of enrolment data capture and 
processes. 





36 

h. AH* operators / supervisors are required to be trained 
themselves and certified as operator / supervisor before 
1 hey can start enrolling. 


i. Every enrolment packet is biometrically signed by the 
operator ensuring traceability and non-repudiation. As a 
result the authenticity of one’s signature cannot be 
denied, • 


j. ■ Every packet is reviewed by a supervisor for data quality 

i 

(review audits are captured electronically), and signed as 
required which means every enrolment is traceable in 
terms of "who", "when", "where", "under which agency", 
"under which registrar", "who reviewed it", etc. 


k. Data collected during enrolment using UIDAI provided 

software ensures that the resident data including raw 
* • 

biometrics is encrypted using strong asymmetric 
encryption technologies before even saving to disk. It is 
to be noted, that raw biometrics is NEVER stored 
anywhere without encryption. 


' 1. The enrolment software uses standard, best in class, 
cryptographic techniques while storing resident data on 

field enrolment stations. It uses, -encryption based on PKI 

_ * . > 

(which ns an asymmetric public/private key encryption 
/vianju sharMa\ jAcheme) which means that no one cannot decrypt and 

Delhi 
No, 8414 





3T 

misuse the data, even if they are in possession of the 
enrolment packet. 


m. During transit of the data from enrolment stations on the 
field to UIDAIdata centers, the following steps are 

ensured (a) every enrolment data packet is "always" 

* 

* 

stored in PK.I enciypted, tamper proof files and is never 

decrypted or modified during transit; (b) the enrolment 
* 

data is never decrypted until it reaches UIDArs data 
c’.enters secure production zone. 


n. It .is submitted that the strong asymmetric encryption 

4 

technologies used to encrypt every resident's data packet 

ensures that no agencies or persons can access, modify, 

or misuse the resident data during field enrolment or in 
• ♦ 

transit to the UIDAI data centre. The Petitioner’s 
contention that private parties may access, sell or misuse 
resident data is completely without any basis. The 
encryption technology used is 2048 bit encryption which 
is the strongest available encryption and it is impossible 
to decrypt and extract any information even if enrolment 
packets are accessible during transit to UIDAI data 

f 

* \ 

centre. 


B. COVERAGE OF AADHAAR 



manju sharma 

. j , Delhi 
I . No. 8414 

•>A hate of Expiry 
•>\ 25 May 2021 


The, coverage of Aadhaar can be seen from the empirical 
evidence available till date. The following figures are already 
'part of the pleadings- 






1 ? 




\ 



a. As on today, the total number of Aadhaar numbers 

generated stands at 115,79,29,945. Therefore, this 

means that the technology has generated more than 

115.79 crore unique ID numbers of individuals after a 

* 

process of de-deupiication carried out against the entire 
database of Aadhaar number holders. 

b. . As on today, the total number of Aadhaar ba.sed 

authentications is 789,47,43,250. Therefore, the Indian 
population has used Aadhaar based authentication over 
789 Crore times to authenticate their identities and avail 
of benefits and services under the Aadhaar Act and/or 

i 

i 

V 

other laws. 

c. Over 7,35 Crore bank accounts have been opened using 
Aadhaar based e-KYC service. 

i 

d. Over 47.25 CrBank Accounts have been seeded with 
Aadhaar (as on 31 st May 2017). 

e. Of the newly opened 28.44 crore Jan Dhan accounts over 
18.97 crore accounts have used Aadhaar. 

f. Over 8.80 crore active NREGA workers of the existing 
database of 10.38 crore active workers have seeded their 


Aadhaar numbers and are receiving their daily wages 

s 

directly in their bank accounts, 

g. Aadhaar number have been linked to over 1.47 crore 


pensioners of the existing database of 2.83 crore 

4 

pensioners. All of them are receiving their pensions 



directly in their bank accounts. 

So far, over 1.36 crore residents have obtained passport 

9 

using their Aadhaar, 

« 

% 

• * 

» * » 


/manjusharmaX . \ 
Delhi \ 
t-iUvu• No. 8414 I 
■ ■•do of Expiry I<r' 
-ay :>021 /<?/ 


♦ i 

poll the State to provide basic minimum 


♦ • 


services to all its 




U o 

citizens. The Directive Principles of State Polic}' requires the 
States to raise the level of nutrition and the standard of living 
and to improve public health of its citizens. In furtherance to 
the said objectives, it becomes imperative Tor the State to 
identify its population and ensure that the benefits reach the 
intended person in a timely and hassle free manner. It is the 
duty of the State to accurately target the eligible intended 
beneficiaries-and ensure that the benefits reach the intended 

i 

♦ 

« 

person, i.e., identifying the residents becomes a prime task to 

* 

ensure equitable and just distribution of social-benefits with 
fewer or no leakages. 


22. In the absence or lack of proper documents, such as birth 
certificates or passports, etc., the lower strata of the societ} 7 
face difficulty in proving their'identity. To meet the said 
objective, an inclusive design for enrolment into Aadhaar was 
adopted. 


23. Aadhaar provides a lifelong identifier to a resident, by way of a 

* 1 

unique 12 digit number, which is held in a highly secure 
database. This pioneering initiative in practice is yielding rich 
dividends in the form of effective service delivery to 
marginalized groups, ensuring complete transparency, 
reducing fraud and corruption as well as providing savings on 
account of weeding out of ineligible beneficiaries. 

' 4 

implementation of Aadhaar based delivery of food grains 
» * 

e residents, residents have been empowered to receive 









U I 

% 

their entitlement of full portion of food grains with an 
assurance that their food grains cannot be diverted by middle 
men through impersonation. The implementation has enabled 
portability for the residents wherein resident can take their 
entitled food grain from any of Fair Price Shop in the state. 

Apart from this crores of fake / duplicate LPG connections were 

# 

weeded out which has resulted into huge financial savings. 




25. ' The implementation of Aadhaar based DBT in the PAHAL 

■ « 

« 

scheme has empowered residents to receive the subsidy 
amount directly into their Aadhaar linked bank account.The 
Aadhaar based DBT has stopped diversion of subsidized LPG 
which has resulted into increase in sale of commercial LPG 
cylinders as black marketing of subsidized cylinder has been 
contained. All of the above has resulted in crores of savings in 
publicbnoney. 


26. Jeevan Pramaan facility has empowered the senior citizen 

pensioners to submit Jeevan Pramaan certificate from 

anywhere in the country and now they are not required to 

personally visit the pension disbursement agency Which used 

to be an onerous affair and required senior citizens to travel to 

the particular branches; where their pension accounts existed. 

So far more than 71.17 lakh pensioners have used Jeevan 
* 

Pramaan during the previous year. 


'z 27. \ India traditionally has been underbanked country as a large 
' /manju SHARMAW \ 

j No. 8414 Jpaijt. of the population were not having any identity proof for 

rZ pate of. Expiry l^r, 

V' . -5Mav-?.02l/Ny 


/Q 

. 

..... \ > 




opening a bank account. Aadhaar has enabled this' by 
becoming the single document which acts as Proof of Identity 
for opening a bank account. To achieve this UIDAI has also 
enabled e-KYC. Over 7.35 Crore bank account have been 
opened using e-KYC service Total Bank Accounts seeded with 

v 

Aadhaar (as on 31*< May 2017): 47.25 Cr. Jan dhan accounts 

4 

are estimated to cover 99.9% of the households in the country. 

Of the newly opened 28.44 crore Jan Dhan accounts over 18.97 

crore accounts have used Aadhaar. The scheme has enabled 

the Government to offer accidental insurance of Rs 1 lac. life 

cover of Rs. 30,000 and over draft facility of uptoRs 5,000 to 
« 

the account holders. 


28. Aadhaar seeding in MGNREGS: Aadhaar number have been 
linked to over 8.80 crore active NREGA workers of the 
existing database of 10.38 crore active workers. All of them 
are receiving their daily wages directly in their bank accounts. 
Aadhaar seeding ensures that there are no duplicate or fake 
workers in the system.. 


29. Aadhaar seeding in NSAP'. Aadhaar number have been linked 

to over 1.47 crore pensioners of the existing database oi 2.83 

crore pensioners'. All of them are receiving their pensions 

‘ * 

direct.lv in their bank accounts. Aadhaar seeding ensures that 

4 * 

t 

there are no duplicate or fake pensioners in the system. 


63 $$ 




p 


y 30\ Aadhaar seeding in EPFO : Aadhaar number have been linked 

MANJUSHARMA 


, Delhi 
% in. No 
Ufe of Expiry 


8414 to bver 1.71 crore UAN ot .the existing database of 11.18 croie 




UAN. The purpose of Aadhaar seeding is to ensure de- 
duplication. of UANs and when the funds the credited the fund 
goes to the genuine person. 


31. Aadhaar based digital signature - e-Sign: Individuals have 
been empowered to .use Aadhaar based digital signature (e- 

j 

Sign) for various purposes such as opening a National Pension 
Scheme (NPS) account, obtaining a new Permanent Account 
Number (PAN) card, update in PAN card, etc. This has enabled 
organizations and individuals to save time and money, 
facilitate remote access in a safe, secure and reliable way while 
promoting environment friendly go-green initiative. 


32. Digi-locker: Residents have been empowered to open to a 
digital locker using their Aadhaar and upload their documents. 

The digilocker has also enabled issuers of the documents such 

» 

as driving license, certificates issued by educational 

institutes/boards etc. to directly upload the 

document/certificates into the residents digilocker account in 

a digitally signed format} These documents/ certificates can be 

shared by the individuals to any organization(s) / authority as 

and when required. E.g. while applying for a job an individual 

need not send physical copy of education certificates, instead 

s/he can authorize the organization to directly collect the soft 
< 

copy of the documents from the digilocker. So far, over 73 lakh 



individuals have availed this facility and uploaded over 83 


h documents. Currently over 28 organizations can upload 
documents directly to digilocker. 





u s 

33. Door step Banking. Aadhaar enabled payment system has 

enabled banks to providje basic banking services such as cash 

deposit, cash withdrawal, etc*at the doorstep in the remote and 

rural areas where bank branches or ATMs^ do not exist. A 
* 

resident can do a basic banking services by using his/her 
Aadhaar number and his/her bio-metrics. These services are 

4 

offered by Bank Mitra carrying a handheld device known as 

microATM. Currently, over 47.25 crore people are enabled to 

* 

use this service. The system currently processes over 5 crore 
transactions every month. These transactions are currently 
facilitated across over 2.85 lakh microATMs offered by 128 
banks in the country. 

* 

34. E-verification of Income Tax return : Aadhaar has enabled 
Income Tax payer to e-verify their income tax return using 
Aadhaar OTP authentication, obviating the need for sending 
the ITR-5 in a physical form to Income Tax Authorities. This 
initiative promotes environment friendly go-green initiative. 

< 

35. Aadhaar Seeding in PAN Card. Linking of Aadhaar number 

with the* PAN Card helps -in de-duplicating the PAN card 

database. This helps in removing duplicate, and benami /fake 

PAN cards, thereby reducing the use of unaccounted money in 

the system. Also, it is one of the enabling factors in the 
* 

Government efforts to broad-base the tax net to ensure more 






36. Aadhaar for getting Mobile SIM : Aadhaar has enabled 

% 

telecom operators, tp issue mobile SIM without the need of 
* 

physical application form, proof of address and identity 

documents. Now, residents are able to take mobile connection 

by using their Aadhaar and finger print instantaneously. This 

has enabled organizations and individuals to save time and 

* 

money, while promoting environment friendly go-green 
initiative. Over 24 crore SIMs have been issued using 
Aadhaar e-KYC service. 


37. Pay to Aadhaar using BHIM/UPI : Users of BHIM/UPI 
application are now enabled to send / transfer money to 
Aadhaar holders by using only the Aadhaar number of the 
recipient. Some of the potential uses are: migrant workers 
sending money to their families using their Aadhaar number or 
making payment for services/ goods to small vendors into their 

i 

1 

Aadhaar linked bank account. 

♦ 

38. Aadhaar Enabled Biometric Attendance System (AEBAS): 

Launched in. year 201b, the service is now available at 660 
organizations, over 2.24 lakh registered employees, over 6000 
active devices devices. It has been observed that due to the 
system average presence in office has gone up. 


39. The petitioner’s arguments that Aadhaar is unnecessary are 
premised on the concept that the State has negative duties or 
n) T^ UtieS res ^ ra ^ n ^ towar( ^ s ^ ie citizens/right bearers.. That is 
'Lio _ sXy, if a citizen has a right to privacy, the corresponding duty 

.'■’ManjusharmaX \ 

Delhi \ ) 




^b 

on the State is to not interfere with that right, i.e. a negative 

duty of restraint. While reiterating that this question can be 

agitated only before the larger bench, a blinkered view of rights 

fails to account for the welfare nature of State wherein this 

Hon’ble Court has read into the Part III. rights, various 
* # 

corresponding positive duties on the State. Professor Sandra 

Fredman of the University of Oxford in her pioneering book 

Human Rights Transformed, Oxford University . Press, 

2009elaborately draws upon the rich Indian jurisprudence 

evolved by this Hon’ble Court to argue that the understanding 

that human rights traditionally means protecting individual 

freedom against intrusion by the State requires radical 

revision. Human rights are based on a far richer view of 

freedom, which goes beyond being let alone, and instead pays 

attention to individuals ability to exeicise theii lights. The 

Petitioner’s argument fails to consider positive duties on'the 

* 

State, which involve fulfilment of the right to food, or right to 

' * 

I * 

receive targeted subsidies etc. 


AO. Therefore, all the above clearly demonstrates the necessity and 
appropriateness’ of the Aadhaar and the Petitioner’s argument 
to the contrary clearly lack substance and merits 1 ejection. At 
the cost of repetition it is reiterated that the validity of a 
' legislative Act cannot be challenged by challenging the 
legislative wisdom of the? competent legislature. 


, PRIVACY SAFEGUARDS 

/ ^ 4fS/70 the outset, it is respectfully submitted that the submissions 

/manjusharma\ . . ...» *i 

Delhi \Mcd in the writ petitions concerning “privacy are necessarily 

Wan. No. 8 414 
• • F'.'.ry 





submissions based upon the Petitioners’ interpretation of 
Article 21 of the Constitution of India. The interpretation of 
Article 21 in the context of Aadhaar is already referred to the 
larger bench. The Coordinate Bench while deciding Binoy 
Visvam case (Supra) also, therefore, consciously decided not to 
touch upon the said aspect as referred hereinabove. The 

9 

9 

» < 

Deponent is, therefore, not dealing with the submissions with 
respect to the said averments / assertions made in the petition 
while reserving liberty to make appropriate submissions as and 
when the larger bench considers the issue finally. 


42. However, without prejudice to the aforesaid contentions and 

f 

while reserving right to respectfully pray to this Hon'ble Court 

not to go into this question, I beg to place the following basic 

/ 

# 

facts [-which would elaborated before the larger bench by way 
of appropriate pleadings] so as to satisfy this Hon'ble Court • 
that the prejudicial arguments of surveillance etc are 
completely baseless and unfounded. 


(a) ' The petitioner has contended that Aadhaar will facilitate 
tracking and surveillance. It is denied that the agencies of 
the government will be able to track individuals or that this 
will be used for surveillance. 


(b) The entire premise of the argument of the petitioner that the 
ata is for surveillance purpose is completely baseless and 
■•'manjusharmaX .unfounded and is emphatically denied. By design the 

npihi \ \ 


Delhi 
No. 8414 


of rixpiry /chiio 1 ogy architecture of the UIDAI precludes even the 





possibility of profiling .individuals for tracking their activities 
* 

including the purpose for' which the)/' may have used 
Aadhaar. 

* 

(c) It is submitted that the contention of the petitioner is ‘ 
completely baseless and stems from ignorance of scope, 
utility and ambit of the Aadhaar Act and the technology 

r 

used therein. As a matter of policy and by design, the UIDAI 
precludes itself from aggregating information arising from 
the use of Aadhaar, tracking and profiling individuals and 
the system by intent is blind to the purpose for which 

Aadhaar may be used at the front end by the resident. 

■ 

Aadhaar is designed on the basis of principles of Minimal 
Data,’Optimal Ignorance’, and Federated Database, which 
will prevent UIDAI, Government or for that matter any 
Department or Agency to track and profile any individual. 
For example, a person may use his Aadhaar number for 
obtaining a SIM card, opening a bank account, and receiving 






/ 

MANJU SHARMA\ . , 
a. . Delhi 


his PDS benefits. Even though Aadhaar number.is used by 
the individual for all the three purposes, Telecom Company 
will not have any information about his bank details or PDS 
benefits received by him. Similarly, the bank will not know 
his SIM cards details and his PDS benefits. So far as UIDAI. 
is concerned it will not have any of the three information - 
bank details, SIM cards details, and PDS benefits details. A 
user department of the government, or agency will have 
formation pertaining only to its own domain and will 





■ . ‘o 

never have or will not be able to build a 360 degree view 

of any of its customers or beneficiaries. 

« 

r 

t 

■ 

These principles of Optimal Ignorance, Minimal Data and 
Federated Databases have now been codified by the 

Parliament in the Aadhaar Act, 20.16 itself. Section 29 of the 

* 

* 

Aadhaar Act, 2016 prohibits any attempt to link different 
databases. Therefore, contention of the petitioners that on 
the basis of a single identifier, Aadhaar will enable the 
government agencies to track and profile and do 
surveillance is complete!}^ unfounded and denied. 

* ♦ 

It is submitted that the Aadhaar can do away with fake 
identities who were earlier pilfering the benefits of several 

welfare schemes from reaching the intended beneficiaries of 

* 

such schemes. The genesis of the problem of fakes and 
duplicates in fact lies in the practice of consumers of 
•services providing different forms of identification alluded to 
by the petitioner and the use of Aadhaar is intended to 
tackle such misuse. 

It is submitted that the actions of the Government in no way 
whatsoever undermines human dignit}' rather it is an 
enabler of a life of dignity. 

i 

# 

It is also submitted that the entire Aadhaar Act of 2016 has 
been drafted keeping an eye on the privacy of the individual 





which informs the entire legislation. Certain provisions can 
be cited to buttress the above submission. 


(h) Section 8 (4) provides that the Authority*shall respond to 
an authentication query with a positive, negative or any 
other appropriate response sharing such identity 
information excluding any core biometric information. 

(i) Section 8(2)(b) states, that a requesting entity shall ensure 

» 

that the identity .information of an individual is .only used 

• * 

for submission to-the Central Identities Data Repository for 
authentication. 


(j) ' Chapter VI provides for a detailed framework for protection 
of information ensuring security, confidentiality and privacy 
of the data and the same standards are imposed on 
agencies, consultants, advisors or other persons appointed 
or engaged for perfoYming any function of the Authority 
under this Act. (Section 28) 



(k) ' Section 29 categorically states that no core biometric 

k 

information, collected or created under this Act, shall be— 
shared with anyone for any reason whatsoever; orused for 
any purpose other than generation of Aadhaar numbers and 

* i 

t 
% 

authentication under this Act. . 


ection. 29(3) also states that no identity information 
available with a requesting entity shall be—(a) used for any 





1 


SI 

^ purpose, other than that specified to the individual at the 

'W 

- time of submitting any identity information . for 

authentication; (b) disclosed further, except with the prior 
♦ 

consent of the individual to whom such information relates. 

(m) Section 30 applies the rigours of the I.T. Act, 2000 and the 

t 

■ 

* 

i „ 

rules thereunder whereby Biometric Information is deemed 
to be Sensitive personal information, 

% 

(n) Section 32 clarifies that the Authority shall not, either by 
itself or through any entity under its control, collect, keep 
or maintain any ' information about the purpose of 
authentication. 


(o) Therefore, at every step, the privacy of the individual has 

been given the highest respect by narrowly tailoring the 

% 

provisions of the law and ensuring that the there is informed 
consent and purpose limitation as far as sensitive personal 
information is concerned. 


(p) Section 33 makes disclosure of information only subject to 
court order, 



Section 33(2) provides disclosure in the interest of national 

security only-upon a direction by an officer-not less than the 
♦ 1 * 

rank of a Joint Secretary which is further reviewed by an 
Oversight Committee consisting of the Cabinet Secretary 
and the Secretaries to the Government of India in the 




Department of Legal Affairs and the Department of 

\£'?$ 

Electronics and Information Technology, before it takes 


effect. 


(r) Chapter VII provides for penalties and offences which 
includes penalty for disclosing information with punishment 
by imprisonment upto three years [per Section 37] as well 
as punishment for unauthorized access to the Central 
Identities Data Repository contained in Section 38. 

(s) Therefore, it is apparent that the entire law is envisaged for 
protection of the individual’s right to privacy with an eye on 

- data security and confidentiality. It is also critical to note 
that whenever Aadhaar is used for purposes other than the 

t 

ones specified in the Aadhaar Act, the aforesaid privacy 
protections will have to be ensured. This is provided foi by 
the proviso to Section 57 of the Aadhaar Act. 

♦ 

(t) * Aadhaar is a transformational homegrown IT project and an 

important platform to improve the efficiency and 
transparency of variops e-governance initiatives in the areas 

- * i 

of food security, jobs, health, tax, etc. 



CHARACTERISATION OF THE AADHAAR ACT, 2016 AS A MONEY 
BILL 

* 

43. It would be pertinent to state that another writ petition being 

rxV.--j-Ay.p. (C) No 231/2016, i.e. Jairam Ramesh v. Union of India 

\ 

/ MANJU SHARMA ^ Qrs challeng i ng the procedure by which the Aadhaar Act, 

1.6\vas passed as a Money Bill under Article 109 and 110 of 





^3 

^ the Constitution is also pending in this Court and the matter 

has been heard on more than one occasion in extenso but no 
notice has yet been issued. 

i 

* 

y 

44. It must be stated the Petitioner’s argument on lack of legislative 
competence and fraud on the constitution due to the passage 
of the Aadhaar Act as a money bill at Para 5(b) at Pg. 11 of the 
Rejoinder is incorrect and covered by decisions of this Hon’ble 
Court against the Petitioner. The issue as to whether the 
Aadha,ar Act 20 i 6 is correctly characterised as a “Money Bill” 
or not is squarely covered by the decisions of this Hon’ble Court 
since once the Speaker has given a certificate certifying a bill 
as a money bill, this Hon’ble Court has held that it ought not 

i 

to interfere with such decision since the Constitution under 
Article 110 (3) makes the decision of the Speaker final in this 

9 

fc 

regard and algo, in light of Article 122 of the Constitution which 
prevents Courts to inquire into proceedings of Parliament, 

Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415. 

t 

45. Similarly, in another case, Yogendra Kumar Jaiswal &Ors. V. 
State of Bihar fi&Ors. (2016) 3 SCC 1S3, (Paras 38 to 43) this 
Hon’ble Court was concerned with whether the Orissa Special 

♦ * i 

« * 

Courts Act, 2006 having been introduced in the Legislative 
Assembly as a Money bill violated the mandate of Article 199 
of the Constitution as it was alleged that it did not have any 
acteristics of a money bill. A similar challenge was repelled 
e Supreme Court wherein it was held that in accordance 
Article 199(3) the decision of the speaker that the bill in 






u>7 

question is a money bi 13 is final and the said decision cannot 
be disputed nor can the procedure of the state legislature be 
questioned by virtue of Article 212. 


PETITIONER'S ALLEGATIONS REGARDING AADHAAR FACTS 
AND FIGURES IS UNFOUNDED 


46. The Petitioner has questioned the figures .of Aadhaar 
enrollment and-claimed them to amount to puffery. It is 
humbly submitted that the 115.15 Crore eniollments of 
Aadhaar which has been claimed as puffery is in fact an actual 
material fact, In fact, as;on today the total number of Aadhaai 

i 

generated stands at 115,79,29,945. It is humbly submitted 
that Aadhaar is a transformational home grown IT 
infrastructure which has received praise and appieciation from 
the world over including the World Bank, wherein in its Report 
of 2015, Aadhaar has received appreciation and Paul Romer, 
the chief economist of the World Bank has -said that the 
Aadhaar system in India is the most sophisticated ID system 
in the world. The World Bank in its report has also stated that 
once Aadhaar is applied to all social programs and welfare 
. systems, it is estimated that it will save approx. USD 11 Billion 
per annum. The Petitioners surely cannot be suggesting the 
international acclaim received by Aadhaar from an 
independent Agency like the World Bank to be puffery. There 
is no 'false praise involved since the number of enrollments 


^YA^^ich stand at 115.79 Crores as of today is hard data as per 


^ial records ’ maintained in usual course of government 

n^No. l 84l4 business and so is the total number of Aadhaar based 
r-of Expiry 7V -r 


1JU SHARMA 
Delhi 




i sr' 

authentications as on todwhich is 789.47 Crores. Therefore, 
the usage of Aadhaar is clearly widespread and the Petitioner's 
argument that these figures amount to puffery is bogus. 


47. At Para 5(c)(iii) at Pg. 13, the Petitioner seems to claim that the 

enrollment of over 110% of the recorded Population in certain 

states raises concern as to fraud within the system. However 

■ 

this, argument is misleading and incorrect. The Aadhaar 
enrollment captures the accurate data of persons living in the 
state as compared to the census record which in many 
occasions would be outdated and old. This is one of the leasons 
for the discrepancy due to which,Aadhaar enrollment has 
exceeded 100 6 /o of the recorded population in some cases. The 
possibility of a fraud within the system gets checked the 
moment a person enrolls into the Aadhaar system with his oi 
her biometric information including fingerprints and iris scan 
whereby every time the said person authenticates, the 

i 

response will confirm that he or she is the person who he or 
she claimed to be apd not any other person. Therefore the said 
person cannot claim, any benefit on behalf of anyone else. 

Tt is respectfully submitted that the figures relied upon by the 
Answering Respondent are the official figuies maintained by 
the Government in regular course of governmental business 


oXAA 


manju sharma 

fr 7,,. Delhi 

■ 7’:^un. No. 6414 
" Date of Expiry 
v '-‘ • 5 IVia 



and cannot be disputed by the Petitioners based upon either 

* > 
vague assertions or some audit objections. 


n anv view of the matter, the moot question which arise for 
onsideration in the present proceedings is the validity of the 
Aadhaar Act. The constitutional validity of the Aadhar Act can 






never be subjected to challenge except on the ground of 
legislative incompetence or violation of Fundamental Rights. 
Alleged dispute on some figures ctin never be a ground which 
would make Aadhaar Act to be unconstitutional when the same 
is passed by the competent legislature. The figures, as given 
by the Petitioners, far from being inaccurate, cannot be pressed 
Tor adjudicating the moot issue arising for consideration of this 
Hon’ble Court. i 


AADHAAR IS BASED ON INCLUSION AND NOT EXCLUSION 

48. The Petitioners in Para 5{c)(iv) at Pg; 13 of the Rejoinder, argue 
that* Aadhaar has rather been an instrument of exclusion. The 
Petitioners claim that 99.9% of persons who have an Aadhaar 
obtained it on the basis of two pre-existing IDs as per an RTI 


reply by the authority. It is humbly submitted that Aadhaar 

♦ 

enrollment is possible on the basis of a large number of identity 
documents including a certificate from a village panchayat 
head or a tehsildar or a rent agreement amongst others. This 
does not mean that these other identity documents would be 


widely acceptable for all purposes. For example, a person with 



a certificate from a village panchayat head may not be able to 

access his rations even though it is an acceptable identity 

document for Aadhaar enrolment, but he will be able to use it 

as a proof of identity for generation of Aadhaar number. 

• * 

Therefore, once he obtains an Aadhaar number he will now also 

be eligible for a host of benefits and subsidies which he would 

\ • 

■^h'pve otherwise not been entitled to on account of lack of a 

bust universally acceptable identity document. Hence, the 



4 P 

rational of the Petitioners is simplistic, misleading and fails to 
encompass the complexity of the ground realities. 


49. It is humbly submitted that Section 7 of the Aadhaar Act states 
that the government may for the purpose of establishing 
identity of an individual as a condition for receipt of a subsidy, 
benefit or service for which the 'expenditure is incurred from 
the consolidated fund of India require that such individual 
undergo authentication or furnish proof of possession of 
Aadhaar number. Therefore, if a person is unable to undeigo 
authentication for whatever reason, the Act itself clearly 
provides that it would suffice to furnish proof of possession of 
Aadhaar number for receipt of benefit. Therefore, the aigument 
of the Petitioner at Pg. 15 Para 5(g) of the Rejoinder, that 
authentication errors lead to exclusion and denial of an 
entitlerhent or benefit is completely misplaced and piemised on 

i 

an incorrect reading of the law since an individual who has 
been unable to undergo authentication for any reason many be 
able to obtain his entitlements by furnishing proof of 
possession of Aadhaar number, the veracity of which can be 
verified by ..the. authorities concerned through prescribed 


means. Therefore, if there are any denials contrary to the 
Aadhaar Act, then the remedy is departmental action on the 


4 




basis of complaint by the beneficiaries which should be 
initiated against errant officials. The Aadhaar Act has been 
enacted with an object to provide for, as a good governance, 

ffiqient, transparent and targeted delivery of subsidies 

/manju sharma\ A . , „ , 

-V • Delhi \benefits and services to genuine beneficiaries. Therefore any 

hson. No. 8414 j 

■h of Expiry /<qr, 

.UUMU AO/ 

Co. 

• ■ off V 


7 




ST 

exclusion of genuine beneficiaries who hold an Aadhaar 
number will be strictly dealt with in accordance with the law. 

50. Moreover, it has been alleged by the Petitioners that as per the 
Notifications under Section 7 of the Aadhaar Act 2016, people 

i 

i 

will be denied benefits if they do not enroll for Aadhaar by 

30*June 2017, now extended to 30* September 2017 and 

* 

therefore people will suffer hardships. It may be noted that the 
notifications though .require people to enroll for Aadhaar by 
30* June, 2017, (which has now been extended to 30* 
September 2017) it is provided in the notifications itself that 
if people are not able! to enroll for Aadhaar due to lack of 
enrolment facilities in the nearby areas, then they can 
register their request for Aadhaar enrolment before the 
appropriate authorities giving their contact details so that 
as and" when enrolment facilities are set up in the area, such 
persons can be enrolled for Aadhaar and foi such people 
benefits will continue to be given even if they have not 

4 

enrolled for Aadhaar before deadline. 


51. The inclusiveness brought about by Aadhaar can be seen fiom 
the following examples. 

i 


52. The MGNREGS pursuant to the MGNREG Act, 2005 assures 
.livelihood security to the rural poor by guaranteeing a 



TLA/? 


minimum of 100 days of wage employment annually to every 
/household whose adult members volunteer to do manual 

C1ANJU SHARMA\ A • S 

. Delhi installed work. There are 10.50 crore active workers registered 

•Vr-.m. 8414 T 

X of Expiry /kTi 

••m'X-'O-I /*0/ 

h 


♦ 





• • s? 

in the - MGNREGS. Of these, §.92 crore crore have bank 

accounts and job cards linked with their Aadhaar number. 

Using these, more than FIs. 14.27 crore payment transactions 

transferring wages have been already remitted. The process is 

seamless and involves more than 54,000 banking 

correspondents who go from village-to-village/ neighbourhood- 

to-neighbourhood with micro-ATM devices. Those who are 

entitled to receive MGNR.EGS wages and have Aadhaar-linked 

bank accounts can authenticate their identity at theii 

doorstep/ 'neighbourhood. This ensures that amounts are 

credited to their bank accounts immediately, allowing them to 

withdraw money with ease thereby furthering the end of 

financial inclusion. This saves them the trouble of going to the 

♦ 

nearest bank, often at distances in excess of 40 km, theieby 
saving loss of a day’s wages. Figures indicate that over 80 lakh 
MGNR&GS workers were withdrawing their wages using 
Aadhaar bio-metric authentication evei}^ month at theii 
doorstep neighbourhood without middlemen and any delay. 
Aadhaar ensures that workers no longer have to undeitake 
back-breaking travel aiid loss of wages to go to theii bank 
branches to receive their daily wage. Therefoie, it is the light 
to livelihood of millions of Indians, which is facilitated by 

Aadhaar. 


5 


3. Likewise, those .who are entitled to receive such pensions undei 
■ ( TA/$\the National Social Assistance Programme (Old Age Pensions, 

idow Pensions, Disability Pensions) and have Aadhaar-linked 
ik accounts can authenticate their identit} 7 at theii 







& o 

doorstep/ neighbourhood. This saves old-age pensioners, 

♦ 

* 

♦ 

widows and the disabled the trouble of going to their bank 
branch to receive their pensions which is onerous particularly 
in far-flung rural areas. 


54. Similarly, at present, all pensioners, including ex-servicemen 

4 

have to visit the bank branch where their pension account has 
* ' 

been opened annually tq demonstrate that he/ she is alive and 

♦ 

\ 

therefore entitled to receive pension. This is an onerous affair 
as this proof cannot be given anywhere in India and requires 
senior citizens to travel to thp particular branches where their 
pension accounts exist, to continue to receive pensions, 
irrespective of where they reside at present. There are 1 crore 
pensioners, with approximately 25 lakh from defence, 25 lakh 
from PSUs, and 50 lakh state and UTs. The Jeevaii Pramaan 
scheme dispenses with this requirement of personal 
appearance. Using Aadhaar, the pensioner can to go to any 
bank/common service centre in India which has the Jeevan 
Praman facility. This is widely available across India. At such 
centres, he/ she can use Aadhaar to authenticate that he/she 
is alive, saving the old pensioners the burden of travelling to 
their original' bank branches to receive their pension. As on 
today, 1.47 crore pensioners are using their Aadhaar linked 
accounts to receive pensions. • 



■4ANJU SKARMA 
.. Delhi 

: .y.v-tn. NO. 8414 

•?; of Hxpify 

•:-w 202.1 


All of the above are examples of a thriving and inclusive system 


hich is possible on account of Aadhaar. 






b\ 

% 

m, • NO INTERIM RELIEF CAN BE GRANTED AFTER REFERENCE TO 

'1 MvM' 

Vi'i'i 1 ' 

A LARGER BENCH 

. * 

56. It is respectfully submitted that the sum and substance of the 

position emerging from the aforesaid facts can.be summarised 
as under: 

(i) The constitutional validity of the Act is under 

i 

challenge in these proceedings and these petitions 

have already been referred to a larger bench. 

♦ * 

* 4 

(ii) A Coordinate Bench of this Hon’ble Court, respecting 

* 

the pendency of the issues before the larger bench, 
made a conscious choice not to deal with the aspects 
which are to be adjudicated by the larger bench - 
aspects which will have to be addressed while 

considering grant or refusal of any interim relief in the 

•» 

present proceedings. 

* 

(iiij In absence of any challenge to the validity of section 7 
of the Act being required to be considered in the 
present matter, that too at an interim stage, the only 

> 

question which is being agitated by the petitioner is 

exercise of power under section 7 of the Act by the 

authority competent to exercise the said statutory 

power and which is exercised by way of statutory 

notifications in national interest and larger- public 

« 

interest. 





<L < 2 — 

_ 57. 1 respectfully submit that when the Coordinate Bench has not 

touched upon the issues which would be necessary for 
considering grant / refusal of interim relief in the present 
matters also, this Hon'ble Court may not consider grant of any 
interim order in the present proceedings. In any view of the 
matter, as has happened in past, even the question of interim 

relief can also be considered by the larger bench.' 

: • 

58. Since the constitutional validity of Section 7 of the Act can 
legitimately be urged only in the matters pending before the 
larger bench, the only question which needs to be examined is 
the exercise of powers under section 7 of the Act by issuance 

of statutory notifications. 


59. It is submitted that section 7 is only an enabling provision. If 

% 

the exercise of the said enabling provision under section 7 by 
way of issuing notifications is interfered with at an interim 

stage by staying the notifications issued under Section 7, the 

► * 

same will necessarily tantamount to staying the operation of 
section 7 itself which this Hon’ble Court would normally never 
do more particularly in light of the findings recorded by the 
Coordinate Bench and also on the ground that the same will 

f 

result into harming national interest at the behest of few 
individuals. 


19.5.2017, the petitioners had expressed urgency on the 

\ grbund that the last date stipulated in the Notification issued 
y\NJU SHARMaYVA 

Delhi \ \ , _^m 

h : . no. 8414 under Section 7 of the Act was 30.6.2017. 

-■'Expiry /sr*/ 

■U1 yCS/ 

-dP/ 



6.1 


,<-R, 


62. 


A3 

After the said order dated 19.5.2017 passed this Hon'ble 

Court, the Central Government, has issued an Office 

Memorandum dated 22.6.2017 extending the said date up to 

30.09.2017 so as to enable' individuals who have not got 

enrolled under the Act to getthe enrolment. A Copy of the office 

Memorandum’ dated 22.06.2017 issued by Central 

Government, is annexed hereto and marked as Annexure A-6. 
(. 236 - 2-4 O 

In light of the judgment dated 09.6.2017 and subsequent 
developments, no case is made out for grant of interim relief. 
The matter/s, therefore, may be heard only by a larger bench 
to sub-serve judicial discipline. 


63. I also respectfully submit that in para 127 of the judgment in 

» 

Binoy [supra], this Hon'ble Court was pleased to require the 

Central Government to take measures so as to ensure that no 

* 

unauthorized leakage of data takes place.The Act and the 
Regulations framed thereunder already has statutory 
provisions containing Safeguards as discussed above. The 
agencies merely collect the biometrics but can never retain / 


access it since the moment the biometrics are collected by the 

« 

agency, they automatically get encrypted by a 2048 Bit 


encryption which can be decrypted only by the UIDAI. It is 




^clinically impossible for anybody to decrypt the same. 


manju sharmaX ^ ^ 


Delhi 




Mo. 


8414 


25 May 


T rvf 


Exp«y kMJ Aadhaar Cards were made initially under the Executive 
* 

£gime and thereafter under the Statutory regime. Till date 





there have been' no instances of any leakage of biometrics of 
any individuals either by the agency collecting it or by anyone 
else. 

However, in light of the observations made by this 
* 

Hon'ble Court, the Central Government has already initiated a 
comprehensive process to review the existing security 
measures so as to strengthen it further to meet with emerging 
challenges. The Central Government, if required, would file a 
detailed affidavit hereinafter pointing out the measures 
contemplated after such comprehensive review is made. 


65. It is respectfully submitted that on a true reading of the 
judgment in Binoy Vi swam (Supra), it is clear that the 
Coordinate Bench considered use of PAN number broadly for 
two purposes; 

(a) P v or filing returns by the Assessee / fresh appliations for 
PAN;and 

(b) For purposes other than filing of income tax returns. 

66. The said fact becomes very clear on reading of the following 
passage * 

♦ i 

113) In 'order to consider the aforesaid submissions- 
we may bifurcate Section 139AA in two parts, as 
follows: (i) That portion of the provision which requires 
quoting of Aa.dha.ar number (sub-section(l)) and 
requirement: of intimating Aadhaar number to the 
prescribed, authorities by these who are PAN holders 
(sub-section (2)). (ii) Consequences of failure to 
intimate Aadhaar number to the prescribed authority 
by specified, date. 

114) Insofar as first limb of Section 139AA of the Act 

f 

is concerned, we Have already held that it was within 







9 S 

the competence of the Parliament to make a provision 
of this nature and further that it is not offensive of 
Article J 4 of the Constitution. This requirement., per 
sendees not find foul with Article 19(l)(g) of the 
Constitution either , inasmuch as, quoting the Aadhacir 
number for purposes mentioned in sub-section (1) or 
intimating the Aa.dh.aar number to the prescribed 
authority as per the requirement of sub-section (2) 
does not, by itself, impinge upon the right to carry on 
profession or trade, etc v Therefore, it is not violative 
of Article 1-9(1 )(g) of the Constitution either. In fact, 
that is not even the argument of the petitioner's. Entire 
emphasis of the petitioners submissions, while 
addressing the arguments predicated on Article 
19(l)(gj of the Constitution, is on the consequences 
that ensue in terms of proviso to sub-section (2) 
inasmuch as it is cfrgued, as recorded above, that the 
consequences provided, will have the effect of 
paralysing the light to carry on business/profession, 
Therefore, thrust is on the second part of Section 
139AA- of the Act, which we proceed to deal with, now. 



115) At the outset, it. may be mentioned that though 
PAN is issued, under the provisions of the Act (Section 
139A), its function is not limited to giving this number 
in the income-tax returns or for other acts to be 
performed under the Act, as mentioned in sub¬ 
sections (5), (5A), J5B), 5(C), 5(D) and 6 of Section 
139A, Rule 114B : of the Rules mandates quoting of 
this PAN in various other documents pertaining to 
different kinds of transactions listed therein. It is for 
sale and. purchase of immovable property valued at 

Rs. 5 J.akhs or more; sale or purchase of motor vehicle 

* 

etc., while opening deposit account with a. sum 
exceeding Rs.50,000/ with a banking company; while 
making deposit of more than Rs.50,000/- in any 
account with Post Office, savings bank; a contract of 
a value exceeding Rs. 1 lakh for sale or purchase of 
securities as defined under the Securities Contract 
(Regulation) Act, 1956; while opening an account with 
a. banking company; making an application for 
installation of a telephone connection; making 
payment to hotels and restaurants when such 
payment exceeds Rs.25,000/- at any one time; while 
purchasing bank drafts or pay orders for an amount 
aggregating Rs.50,000/- or more during any one day, 
when payment in cash; payment in cash in connection 
with travel to any. foreign country of an amount 
exceeding Rs.25,000/- at any one time; while making 





66 

payment of an amount, of Rs.50,000/ - or more to a 
mutual fund for purchase of its units or for acquiring 
shares or debentures/bonds in a company or bonds 
issued by the Reserve Bank of India; or when the 
Transaction of purchase of bullion or jewellery is made 
by making payment in cash to a deafer above a 
specified, amount, etc. This shows that for doing 
many activities of day to day nature, including in the 
course of business, PAN is to be given, Pithily put, in 
the absence of PAN, it will not be possible to 
undertake any of the aforesaid activities though this 
requirement is aimed at curbing the tax evasion. 
Thus, if the PAN of a person is withdrawn or is 
nullified, it definitely amounts to placing restrictions 
on the nght to do business as a business under Article 
19(l)(g).of the Act. The question would be as to 
whether these restiictions are reasonable and, 
therefore, meet the requirement of clause (6) of Article 
19. 


67. 


In the context of the aforesaid analysis of the Section 139AA, 
this Hon'ble Court, in para 125, granted a very limited 
protection which can be summarised as under: 


(a.) If an Assessee wants to file a return, he will have to 

* 

comply with Section 139 AA i.e. mentioning / linking his 
• * 

Aadhaar Number and FAN card in the Income Tax 
Return; 


P 


vOjAtf 

Y 

/ tVIANJU S HARM A 
Delhi 
NO. 8414 
, Dole of Expiry /«r 
. :5 May 2021 ' 


(b) However, severe consequence namely cancellation of PAN 
number for other "day-to-day dealings” is ordered not to 
take effect for those who do not already have Aadhaar. 


<N> 


In other words, PAN number would not get invalidated 
only under proviso to Section 139 AA(2) and it can be used for 


purposes other than filing of income tax returns. 




As made clear by the Hon'ble Bench itself, the protection is 
limited to the extent mentioned and there can be no 
comparison between the scheme of Section 139AA of the 

* i 

Income Tax Act, the consequences provided therein and the 

ischeme of Section 7 of the AadhaarAct. In any event, the 

* 

requirement of Aadhaar for filing returns has been upheld for 

i 

all assesses, whether one already holds Aadhaar number or 
not, thereby deferring to the legislative wisdom that inclusion 
of Aadhaar into PAN would go a long way in dealing with the 
problem of black money and tax evasion. 

In any view of the matter as pointed out in the pleadings, the 

► 

linkage of aadhar number with the benefits sought to be 

provided [which is welcomed by the Coordinate Bench of this 
♦ 

Hon'ble Court as referred above] has already started long back 

* ♦ • 

and any interference at this stage, that too as an interlocutory 
measure would amount to grant of mandatory relief and not an 
injunctive interim relief. 

♦ 

This Hon'ble Court would normally never grant such 
mandatory relief more particularly when the beneticiaries of 
the scheme mentioned in Section 7 are not objecting and few 
individuals are seeking to raise specious pleas which is not 
only incapable of.acceptance but against national interest. 




Trt. 


\a* 

7 

This Hon’ble Court may, therefore, decline any interim reliefs 
sought for by the Petitioners. 


t 


AND FOR THIS ACT OF KINDNESS, THE ANSWERING 
RESPONDENT AS IN DUTY BOUND SHALL EVER PRAY. 



VERIFICATION 



3fR. ... ■ 

’WftwE'/Asit. Director General 
TOfcl ftftre nsSH Jrt(&ra^®T/Uiiiqu» identificatiqnAoiherity of India 
ofa WFG tMW *raT5W/«ini»lry Ol EtccUonic* b I.T. 
Ht: M fesft-110001/GftetBl indie. New OelhMtOOOl 


I, the deponent named above do hereby verify that the facts stated 
in the above affidavit are true' to my knowledge and belief, derived 
from the records of the case, nothing material has been concealed 

therefrom ajid no part of it is false. 


Verified at New Delhi on this 3 rd day of July, 2017. 






DEPONENT 

m 4 tfo/R. P- Pfy NT . 


CERTIFIED IHAT THE. COMIFNXS EXET/MlNg* 
TO THE i Ew:Cn':ANT. WHO 

APPEARS PERFECT TO UNDERSTAND & 
AD'lRM / DEPOSE BEFORE MF. AT DELHI 

iTIFiEO BY 


oh. 

\& 6 .\ Tin 7 :!) THE F.X?CiJTAMTi 
i SIGHED IN MY PRE 



T/DEP ON ENT 

VHO HAG SIGNED IN MY PRESENCE 


S- 


/V- 








m 


WP( C) 4 94/12 


•^NwexuRe ft-\ 

63 


ITEM NO.1 


COURT NO.5 


SECTION X 


SUPREME COURT OF INDIA 
RECORD OF PROCEEDINGS 


Writ Petition (Civil) No.494/2012 


JUSTICE K.S. PUTTASWAMY (RETD.) AND ANR. Petitioner(s) 

VERSUS 

UNION OF INDIA & ORS. Respondent(s) 

/ 

i 

• 

WITH W_.J P. ( C) No . 797 /2016 

(With appln.(s) for directions, stay "and permission to file 
Annexure) 

W.P.(C) No.342/2017 

(With appln. (s') for interim prayer for grant of interim relief) 

♦ 

Date : 27/06/2017 These petitions were called on. for hearing today. 


CORAM : 

HON'BLE MR. JUSTICE A.M. KHANWILKAR 
HON'ELE MR. JUSTICE NAVIN SINHA 


For Petitioner(s) 

Mr. 

Anish Kumar Gupta, AOR 


Mr . 

Avdhesh Kumar Singh, Adv. 


Mr. 

Chandra Shekhar Suman, Adv. 


Mr. 

R.K. Rajnanshi, Adv. 


Ms . 

Deepshikha Bharati, Adv. 

WE 3 797/16 

Mr. 

Shyam Divan, Sr. Adv. 


Mr . 

Pratap Venugopal, Adv. 


Mr. 

Udayaditya Banerjee,'Adv. 


Mr. 

Prasanna S., Adv. 


Ms . 

Niharika, Adv. 


Ms'. 

Sameeksha G., Adv. 

• 

Mr. 

Apar Gupta, Adv. 

* 

for 

M/s. K.J. John S Co. 


Mr. 

Shyam Divan, Sr. Adv. 

Ol^ll.'nrCnriftyby 

CM F VAN ikUGAK 

Mr . 

Vipin Na.ir, AOR 

tot" 

1 \Kv3h IFJ 

Mr. 

Uday Aditya Banerjee, Adv. 




WPfCl 494/12 


2 


ID 


Mr. S. Prasanna, Adv. 

1 « 

Mr. Apar Gupta, Adv.' 

Mr. Abhay Pratap Singh, Adv. 

For Respondent(s) Mr. Tushar Mehta, ASG 

Ms. Ranjeeta Rohatgi, Adv, 

Mr. R. Balasubramanian, Adv. 
Mr. R.K. Rathore, Adv. 

Mr. Zoheb Hossain, AOR 
Ms. Aarti Sharma, Adv. 

Mr. Abhinav Mukherjee, Adv. 
Mrs. Anil Katiyar, AOR 
, Mr. Ravi Prakash, Adv. . 

* Mr. Sachin Sharma, Adv. 

Mr" Raj at Nair, Adv. 

Mr. Ritesh Kumar, Adv. 

. Mr. R.K. Verma,,Adv. 

Mr. Anil Gulati, Adv. 

Mr. Balkishan Lodhania, Adv. 
Ms. Devika Jain, Adv. 

Mr. V.G. Pragasam, AOR 

Mr. Shiv Mangal Sharma, AAG 
Ms. Shikha Sandhu, Adv. 

Ms. Ruchi Kohli, AOR 

Mr. Mishra Saurabh, AOR 

» 4 

Mr: Manoj K. Mishra, AOR 

Mr. Manish Vashishtha, AOR 

Mr. SanchariAanand, Adv. 

Mr. Apoorv Singhal, Adv. 

Mr. Anant K. Vatsya, Adv. 

Mr. Jagjit Singh Chhabra, AOR 

Ms. Hemantika Wahi, AOR 
Ms. Shodhika Sharma, Adv. 

Mr, Harish Pandey, AOR 

Mr. Garvesh Kabra, AOR 

Mr. Ashok Mathur, AOR 

Mr. Anip Sachthey, AOR 



I 


* 



WP(C) 494/12 


3 


7 


Ms. Savita Singh, AOR 
Mr. Sanjay Kapur, AOR 
Mr. Ranjan Mukherjee, AOR 

Mr. Nishant] Ramakantrao Katneshwarkar, AOR 
Mr. Jayant Mohan, AOR 
Mr. D.S. Mahra, AOR 
.Mr. Guntur Prabhakar, AOR 

* 

M/s. Corporate Law Group 

Mr. Abhinav Mukerji, AOR 

Mr. Anil Grover, AAG 

Mr. San jay Kumar Visen, AOR 

Mr. Varinder Kumar Sharma, AOR 

Mr. Tapesh Kumar'Singh, AOR 
Mr. Aditya Pratap Singh, Adv. 

Mohd. Waquas, Adv. 

Ms. Anitha Shenoy, AOR 

Mr. Aniruddha P. Mayee, £OR 

Mr. T.G. Narayanan Nair, AOR 

Ms. Aruna Mathur, AOR 
Mr. Avneesh Arputham, Adv. 

Ms. Anuradha Arputham, Adv. 

Mr. Amit Arora, Adv. 

Mr. Jatinder Kumar Bhatia, AOR 
Mr. Ashutosh Kumar Sharma, Adv. 

Mr. Gopal Singh, AOR 
Ms. Varsha Poddar, Adv. # 

Mr. Shoeb Alam, Adv. 

Ms. Fauzia Shakil, Adv. 

Mr. Ujjwal Singh, Adv.* 



2 


4 


72 


Mr. Mojahid Karim Khan, Adv. 

* 

Mr. K.V, Jagadishvaran, Adv. 

Ms. G. Indira, Adv. 

UPON hearing,the counsel the Court made the following 

ORDER 
« * 

W.P.(C) No.797/2016 &W.P.(C) No.342/2017 

Heard Mr. Shyam Divan, learned senior counsel for 
the petitioners and Mr. Tushar Mehta, learned Additional 
Solicitor General for the Union of India. 

Mr. Tushar Mehta, learned Additional Solicitor 
General has prayed for some time on the ground that new facts 
have been stated ,in ^the rejoinder affidavit filed by the 
petitioner, which will have to be countered by the Union of 
India. The request ' for adjournment is not opposed by 
Mr. Divan, learned senior, 1 counsel for the petitioner, but he 
submits that in that case, the Court may clarify the position 
that the facilities which are provided under the Social 
Welfare Schemes to the persons who do or do not possess 
Aadhar card, should continue till the next date of hearing. 

Mr. Mehta, learned Additional Solicitor General 
submits that no such clarification is required as the Office 
Memorandum dated 22 nd June, 2017, extends the cut off date 
till 30 th September, 2017, for persons who do- not have the 
Aadhar number or Aadhar ca^cd. In view of this submission and 
the observations found in the judgment in case of Bi n oy 
Vis warn vs. Union of India and Others [Writ Petition (C) 
No.247 of 2017] decided on 9 th June, 2017, no further 

observation is required. 



WP(C) 494/12 


5 


73 


Let the sur rejbinder be filed on or before 4 th July, 

2017. 


* 

• List the matter before the appropriate Bench on 
7 th July, 2017. 

* * * 

I 


(Chetan Kumar) 
Court Master 


(H.S. Parasher) 
Court Master 


*T n U 









m Awvj exoReR-z 

M.r/' 

ITEM NO.60 COURT NO.5 SECTION PIL(W) 

# # 

SUPREME C’OURT OF INDIA 

' RECORD OF PROCEEDINGS 
Writ Petition (s) (Civil) No(s) , 797/2016 

S.G. VOMBATKERE AND ANR. Petitioner(s) 


VERSUS 


UNION OF INDIA AND ANR. Respondent(s) 

(with appTn. (s) for interim relief and permission to file 
additional documents) 


Date : ‘28/10/2016 This petition was called on for hearing today. 

1 4 

CORAM : 

HON’BLE MR. JUSTICE J. CHELAMESWAR 
HON’BLE MR. JUSTICE’PRAFULLA.C. PANT 


For 


Petitioner (s) 


Mr. Shyam Divan,Sr.Adv. 

Mr. Pratap Venugopal,Adv. 
Mr. Anuj Sarma,Adv. 

Ms. Niharika,Adv. 

Mr. Udayditya Banerjee,Adv. 
Mr. Prasana S,Adv. 

Ms. Samiksha,Adv. 


For . M/s. K. J. John & Co.,Adv. 


For Respondent(s) Mr. Mukul Roliatgi,A.G. 

Mr. Aj ay Sharma,Adv. 

Mr. Zoheb Hossain,Adv. 

Mr. D.S% Mahra,Adv. 

Ms. Anil Katiyar,Adv. 

Mr. B.K. Pr£sad,Adv. 

Ms. Ranjeeta Rohatgi,Adv. 

Mr. Vikramjit Banerjee,Adv. 

UPON hearing the counsel the Court made the following 

ORDER' 

Issue Rule Nisi. 

Tag with W.P. (C)No.494/2012 and connected matters. 


SinnalvrtvNo! Vc'lird 


panASH y€M* r.M 

KSii’SJ [ 0 . P . 


SHARMA], 


AR-CUM-PS 


[RAJINDER KAUR] 
COURT MASTER 


J fluC Cef'y 



is 


ITEM MO.13 


COURT N.O,7 SECTION PIL (W) 

r 

SUPREME COURT OF IND.IA 
RECORD OF PROCEEDINGS 


Writ Petition (Civil) No. 342/2017 
SHANTHA SINHA AND ANR. 

. VERSUS 


Petitioner (s) 


UNION OF INDIA AND ANR. Respondent(s) 

* 

(With appln. (s) for interim relief and offree report) 

Date : 09/05/2017 This petition was called on for hearing today. 


CORAM : 

HON’BLE MR. JUSTICE A.K. SIKRI 
HON’BLE MR. JUSTICE ASHOK BHUSHAN 

For Petitioner(s) 

* Mr. Shyam Divan, Sr. Adv. 

Mr. Vipin Nair, Adv. 

Mr. P. B. Suresh, Adv. 

Mr. Udayaditya Banerjee, Adv. 

Ms. Samiksha Godiyal, Adv. 

Mr. R. Prasanna, Adv. 

Mr. Abhay Pratap Singh, Adv. 

Mr. Prithu Garg, Adv. 

Mr. Vipin Nair, Adv. 

# 

For Respondent(s) 

Mr. Ranjit Kumar, SG. 

Mr. Zoheb Hossain, AdV. 

UPON hearing the counsel the Court made the following 

ORDER 
• • 

Issue Rule Nisi. 

Tag with Writ Petition (Civil) No. 494 of 2012 and 


other connected matters. 

Mr. Shyam Divan, learned senior counsel appearing for 
the petitioners, submits that some urgent orders are required 

bair ZPoJbon 




' on the interim prayers made by the petitioners, as enrollment 

I ■ 


1 




74 

P.(C) No. 342/2017 

under Aadhaar in respect of certain schemes is required by 
30 th June, 2017 . He has also drawn our attention to the 
orders dated August 11, 2015 passed in Writ Petition (C)No. 

494 of 2012 wherein the Court observed that having regard to 

, . , . * 

the importance of ' the matter, it is desirable that the 

matters be heard at the earliest. He,' further submits that 

same sentiments were expressed by the Constitution Bench in 

> 

its order dated 15 th October, 2015. 

Xt will always be open to the petitioners to mention 

the matter before Hon'ble the Chief Justice for constituting 
an appropriate Bench to hear the matters finally at an early 
date. It will also be open to the petitioners to request for 
hearing of the interim prayers made by them. 


(Nidhi Ahuja) 
Court Master 


(Mala Kumari Sharma) 
Court Master 






WWW.LIVELAW.IN AN>NGX.UBE 

IT 

REPORTABLE 

IN THE SUPREME COURT OF INDIA 
CIVIL ORIGINAL JURISDICTION ’ 

WRIT PETITION (CIVIL) NO. 247 OF 2017 


BINOY VISWAM 


....PETITIONER^) 


VERSUS 


UNION OF INDIA & ORS. 

i 

.RESPONDENT(S) 


WITH 



WRIT PETITION (CIVIL) NO. 277 OF 2017 

AND 

WRIT PETITION fCIVILl NO. 304 OF 2017 


JUDGMENT 


A.K. S1KR1. J. 

In these three writ petitions filed by the petitioners, who 
claim themselves to be pubic spirited persons, challenge is laid to 
the constitutional validity of Section 139AA of the Income Tax Act, 
1961 (hereinafter referred to as the ‘Act’), which provision has 

v™fiM 

• ' been inserted by the amendment to the said Act vide Finance Act, 

fiw«' }^J 

2017. Section 139AA of the Act reads as under: 


Writ PQtition (Civil) No. 247 of 201 7 &J2fS, 


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^ 2 

“ Quoting of Aadhaar number . - (1) Every person 
who is eligible to obtain Aadhaar number shall, on or 
after the 1 st . day of July, 2017, quote Aadhaar number- 

(i) • in the application form for allotment of 

permanent account-number; 

(ii) in the return of income: 

r 

Provided that where the person does not possess 
the Aadhaar Number, the Enrolment ID of Aadhaar 
application form issued to him at the time of enrolment 
shall be quoted in the application for permanent 
account number or, as the case may be, in the return 
of income furnished by him. 

(2) Every person who has been allotted permanent 
account number as on the 1 st day of July, 2017, and 
who is eligible to obtain Aadhaar number, shall 
intimate his Aadhaar number to such authority in such 
form and manner as may be prescribed, on or before 
a date to be notified by the Central Government in the 
Official Gazette: \ 

Provided that in case of failure to intimate the 
Aadhaar number, the permanent account number 
allotted to the person shall be deemed to be invalid 
and the other provisions of this Act shall apply, as if 
the person had not applied for allotment of permanent 
* account number. 

(3) The provisions of this section shall not apply to 
such person or class or classes of persons or any 
State or part of any State, as may be notified by the 
Central Government in this behalf, in the Official 
Gazette. 

Explanation. - For the-purposes of this section, the 
expressions - 

(i) "Aadhaar number”, “Enrolment" and 
“resident” shall have the same meanings 
respectively assigned to them in clauses (a), 
(m) and (v) of section 2 of the Aadhaar 
(Targeted Delivery of Financial and other 
Subsidies, Benefits and Services) Act, 2016 
(18 of 2016); 


Writ Petition (Civil) No. 247 of 2017 & Ors. 


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(ii) “Enrolment ID” means a 28 digit Enrolment 
Identification Number issued to a resident at 
the time of enrolment." 

Even a cursory look at the aforesaid provision makes it clear that 
in the application forms for allotment of Permanent Account 

* i 

Number (for short, 'PAN’) as well as in the income-tax returns, the 
assessee is obliged to quote Aadhaar number. This is 
necessitated on any such applications for PAN or return of 
income on or after July 01, 2017, which means from that date 

9 

quoting of Aadhaar number for the aforesaid purposes becomes 
essential. Proviso to .sub-section (1) gives relaxation from 
quoting Aadhaar number to those persons who do not possess 
Aadhaar number but have already applied for issuance of 
Aadhaar card. In their cases, the Enrolment ID of Aadhaar 
application form is to be quoted. It would mean that those who 
would not be possessing Aadhaar card as on July 01, 2017 may 
have to necessarily.apply for enrolment of Aadhaar before July 

01,2017. 

3) The effect of this provision, thus, is that every person who desires 
to obtain PAN card or who is an assessee has to necessarily 
enrol for Aadhaar. It makes obtaining of Aadhaar card 
compulsory for those persons who are income-tax assessees. 


yvwf Petiti n p (Civil) No. ?4 7 of 2Q17 Qc g* 


Page 3 




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80 

Proviso to sub-section (2) of Section 139AA of the Act stipulates 

♦ 

the consequences of faifure to intimate the Aadhaar number. In 
those cases, PAN allotted to such persons would become invalid 
not only from July 01,2017, but from its inception as the deeming 
provision in this proviso mentions that PAN would be invalid as if 
the person had not applied for allotment of PAN, i.e. from the very 
beginning. Sub-section (3), however, gives discretion to the 
Central Government to exempt such person or class or classes of 

t 

» 

persons or any State or part of any State from the requirement of 
quoting Aadhaar number in the application form for PAN or in the 

I 

return of income. 

The challenge is to this compulsive nature of provision 

inasmuch as with the introduction of the aforesaid provision, no 

discretion is left with the income-tax assessees insofar as 

enrolment under the Aadhaar (Targeting Delivery of Financial and 

♦ 

Other Subsidies, Benefits and Services) Act, 2016 (hereinafter 
referred to as the ‘Aadhaar Act’) is concerned. According to the 
petitioners, though Aadhaar Act prescribes that enrolment under 
the said Act is voluntary and gives choice to a person to enrol or 

not to enrol himself and obtain Aadhaar card, this compulsive 

♦ 

i 

element thrusted in Section 139AA of the Act makes the said 
provision unconstitutional. The basis on which the petitioners so 


Writ Petition (Civil) No. 247 of 20 17 & OfS* 


Page 4 




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SI 

contend would be taken note of at the appropriate stage. 
Purpose of these introductory remarks was to highlight the issue 
involved in these writ petitions at the threshold. ■ 

4) Before we take note of the arguments advanced by the 
petitioners and the rebuttal thereof by the respondents, it would 

4 

be in the fitness of things to take stock of historical facts 

4 

pertaining to the Aadhaar scheme and what Aadhaar enrolment 

« 

amounts to. 

• i 

Aadhaar Scheme and its administrative and statutory framewor k 

5) Respondent No.1, Union of India, through the Planning 
Commission, issued Notification dated January 28, 2009, 
constituting the Unique Identification Authority of India (for short, 
‘UIDAI'J for the purpose of implementing of Unique Identity (UID) 
scheme wherein a UID database was to be collected from the 
residents of India. Pursuant to the said Notification, the 
Government of India appointed Shri Nandan Nilekhani, an 
entrepreneur, as the Chairman of the UIDAI on July 02, 2009. 
According to this scheme, every citizen of India is entitled to enrol 
herseif/himself with it and get a unique, randomnly selected 12 
digit number. For such enrolment, every person so intending 
would have to provide his/her personal information along with 


Writ Petition (Civil) No. 247 of 2017 & Ors. 


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S2. 

biometric details such a fingerprints and iris scan for future 
identification. Accordingly, it is intended to create a centralized 
database under the UIDAI with all the above information. The 
scheme was launched in September 2010 in the rural areas of 
Maharashtra and thereafter extended all over India. One of the 
objects of the entire project was non-duplication arid elimination 

of fake identity cards. 

On December 03, 2010, the National Identification Authority of 
India Bill, 2010 was introduced in the Rajya Sabha. On 
December 13, 2011, the Standing Committee Report was 
submitted to the Parliament stating that both the Bill and project 
should be re-considered. The. Parliamentary Standing Committee 
on Finance rejected the Bill of 2010 as there was opposition to 
the passing of the aforesaid Bill by the Parliament. Be that as it 
may, the said Bill of 2010 did not get through. The result was that 
as on that date, Aadhaar Scheme was not having any statutory 
backing but was launched and continued to operate in exercise of 
executive power of the Government. It may also be mentioned 
that the Government appointed private enrollers and these private 
collection/enrolment centres run by private parties continued to 
enrol the citizens under the UID scheme. 


N <? ?47 Qf i0S 2J^Qr&. 


Page 6 




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23 

7) Writ Petition (Civil) No. 494 of 2012, under Article 32 of the 
Constitution of India, was preferred by Justice,K.S. Puttuswamy, 
a former Judge of the Karnataka High Court before this Court, 
challenging the UID scheme stating therein that the same does 

t 

not have any statutory basis and it violated the ‘Right to Privacy’, 

♦ • 

which is a facet of Article 21 of the Constitution. This Court 
decided to consider the plea raised in the said writ petition and 

issued notice. Vide order dated September 23, 2013, the Court 
also passed the following directions: 

“In the meanwhile, no person should suffer for not 
getting the Aadhaar card in spite of the fact that some 
authority had issued a circular making it mandatory 
and when any person applies to get the Aadhaar Card 
voluntarily, it may be checked whether that person is 
entitled for it under the law and it should not be given 
to any illegal immigrant.” 

In the meanwhile, various writ petitions were filed by public 

V 

spirited citizens and organisations challenging the validity of the 
Aadhaar scheme and this Court has tagged all those petitions 
along with Writ Petition (Civil) No. 494 of 2012. 

8) In the meantime, in some proceedings before the- Bombay High 
Court, the said High Court passed orders requiring UIDAI to 
provide biometric information to CBI for investigation purposes 
with respect to a criminal trial. This order was challenged by 


Writ Petition (Civil) No. 247 of 2017 x. n r <z 


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8q 

UIDAI by filing Special Leave Petition (Criminal) No. 2524 of 
2014, in which orders dated March 24, 2014 were passed by this 

7 

Court restraining the UIDAI from transferring any biometric 

information to any agency without the written consent of the 
* 

concerned individual. The” said order is in the following terms: 

i 

"In the meanwhile, the present petitioner is restrained 
from transferring any biometric information of any 
person who has been allotted the Aadhaar number to 
any other agency without his consent in writing. 

More so, no person shall be deprived of any service 
for want of Aadhaar number in case he/she is 
otherwise eligible/entitled. All the authorities are 
directed to modify their forms/circulars/likes so as to 
not compulsorily require the Aadhaar number in order 
to meet the requirement of the interim order passed by 
this Court forthwith." 


9) Thereafter, the aforesaid writ petitions and special leave petitions 

were taken up together. Matter was heard at length by a three 
» 

« 

Judges Bench of this Court and detailed arguments were 
advanced by various counsel appearing for the petitioners as well 
as the Attorney General for India who appeared on behalf of the 
Union of India. As stated above, one of the main grounds of 
attack on Aadhaar Card scheme was that' the very collection of 

4 

biometric data is violative of the ‘Right to Privacy’, which, in turn, 
violated not only Article 21 of the Constitution of India but other 
Articles embodying the fundamental rights guaranteed under Part 


Writ Petition (Civil) No. 247 of 2017 & Ors, 


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35 

III of the Constitution. This argument was sought to be rebutted 

i 

/ « 

by the respondents with the submission that in view of eight 
Judges’ Bench judgment of this Court in M.P. Sharma & Ors. v. 
Satish Chandra & Ors.' and that of six Judges’ Bench in Kharak 
Singh v. State of U.P. & Ors. 2 , the legal position regarding the 
existence of fundamental Right to Privacy is doubtful. At the 
same time, it was also accepted that subsequently smaller 
Benches of two or three Judges of this Court had given the 
judgments recognising the Right to Privacy as part of Article 21 of 
the Constitution. On that basis, respondents submitted that the 
matters were required to be heard by a Larger Bench to debate 
important questions like: 

(j) Whether there is any Right to Privacy guaranteed under the 
Constitution; and 

(ii) If such a Right exists, what is the source and what are the 
contours of such a Right as there is no express provision in 
the Constitution adumbrating the Right to Privacy. 

10) Though, this suggestion of the respondents were opposed by the 
counsel for the petitioners, the said Bench still deemed it proper 

* 4 

to refer the matter to the Larger Bench and the reasons for taking 
this course of action are mentioned in paras 12 and 13 of the 

_ — * 

1 AIR 1954 SC 300 

2 AIR 1963 SC 1295 


Writ Petition (Civil) No. 247 of 2Q1 7 & Ors l 


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2 & 

order dated August 11, 2015 which reads as under: 

♦ • 

* • 

"12. We are of the opinion that the cases on hand 
raise far,‘reaching questions of importance involving 
interpretation of the Constitution. What is at stake is 
the amplitude of the fundamental rights including that 
precious and inalienable right under Article 21. If the 
observations made in M.P. Sharma (supra) and 
Kharak Singh (supra) are to be read literally and 
accepted as the Jaw of this country, the fundamental 
rights guaranteed under the Constitution of India and 
more particularly right to liberty under Article 21 would 
be denuded of vigour and vitality. At the same time, 
we are also of the opinion that the institutional integrity 
and judicial discipline require that pronouncement 
made bv larger Benches of this Court cannot be 
ignored bv the smaller Benches without appropriately 
explaining the reasons for 'not following the 
pronouncements made bv such larger Benches . With 
due respect to all the learned Judges who rendered 
the subsequent judgments - where right to privacy is 
, asserted or referred to their Lordships concern for the 
liberty of human beings, we! are of the humble opinion 
that there appears to be certain amount of apparent 
unresolved contradiction in the law declared by this 
Court. 

13. Therefore, in our opinion to give a quietus to the 
kind of controversy raised in this batch of cases once 
• for all, it is better that ratio decidendi of M.P. Sharma 
(supra) and Kharak Singh (supra) is scrutinized and 
the jurisprudential correctness of the subsequent 
decisions of this Court where the right to privacy is 
either, asserted * or referred be examined and 
authoritatively decided by a Bench of appropriate 
strength. 

(emphasis supplied)” 


11) While referring the matter as aforesaid, by another order of the 
even date, the Bench expressed that it would be desirable that 
the matter be heard at the earliest. On the same day, yet another 
order was passed by the Bench in those petitions giving certain 


Writ Petition (Civil) No. 247 of 2017 & Ors . 


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S7 

interim directions which would prevail till the matter is finally 
decided by the Larger Bench. We would like to reproduce this 

order containing the said interim arrangement in toto: 

'‘INTERIM ORDER 


After.the matter was referred for decision by 
a larger Bench, the learned counsel for the petitioners 
prayed for further interim orders. The last interim order 
in force is the order of this Court dated 23.9.2013 
which reads as follows:- 

“All the matters require to be heard finally. 

List all matters for final hearing after the 
Constitution Bench is over. 

In the meanwhile, no person should suffer for 
not getting the Aadhaar card inspite of the 
fact that some authority had issued a circular 
making it mandatory and when any person 
applies to get the Aadhaar card voluntarily, it 
may be checked whether that person is 
entitled for it under the law and it should not 
be given to any illegal immigrant.” 

It was 'submitted by Shri Shyam Divan, 

* learned counsel for the petitioners that the petitioners 
having pointed out a serious breach of privacy in their 
submissions, preceding the reference, this Court may 
grant an injunction restraining the authorities from 
proceeding further, in the matter of obtaining 
biometrics etc, for an Aadhaar card. Shri Shyam Divan 
submitted that the biometric information of an 
individual can be circulated to other authorities or 
corporate bodies which, in turn can be used by them 
for commercial exploitation and, therefore, must be 

stopped. 


The learned Attorney General pointed out, on 
the other hand, that this Court has at no point of time, 
even while making the* interim order dated 23.9.2013 
granted an injunction restraining the Unique 
Identification Authority of India from going ahead and 
obtaining biometric or other information from a citizen 


Writ Petition (Civil) No. 247 of 2017. & QlS, 


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for the purpose of a Unique Identification Number, 
better known as “Aadhaar card". It was further 
submitted that the respondents have gone ahead with 
the project and have issued Aadhaar cards to about 
90% of the population.. Also that a large amount of 
money has been spent by the Union Government on 
this project for issuing Aadhaar cards and that in the 
circumstances, none of the well-known consideration 
for grant of injunction are in favour of the petitioners. 

* 

The learned Attorney General stated that the 
respondents do not share any personal information of 
an Aadhaar card holder through biometrics or 
otherwise with any other person or authority. This 
statement allays the apprehension for now, that there 
' is a widespread breach of privacy of those to whom an 
Aadhaar card has been issued. It was further 
contended on behalf of the petitioners that there still is 
breach of privacy. This is a matter which need not be 
gone into further at this stage. 

The learned Attorney General has further 
submitted that the Aadhaar card is of great benefit 
since it ensures an effective implementation of several 
social benefit schemes of the Government like 
MGNREGA, the distribution of food, ration and 
kerosene through PDS system and grant of subsidies 
in the'distribution’of LPG. It was, therefore, submitted 
that restraining the respondents from issuing further 
Aadhaar cards or fully utilising the existing Aadhaar 
cards for the social schemes of the Government 
should be allowed. 

The learned Attorney General further stated 
that the respondent Union of India would ensure that 
Aadhaar cards would only be issued on a consensual 
basis after informing the public at large about the fact 
that the preparation of Aadhaar card involving the 
parting of biometric information of the individual, which 
shall however not be used for any purpose other than 
a social benefit schemes. 

Having considered the matter, we are of the 
view that the balance of interest would be best served, 
till the matter is finally decided by a larger Bench if the 
Union of India oV the UIDA proceed in the following 
manner:- 

Writ Petition (Civil) No. 247 of ZQ17 * PCS* 



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*3 

1. The Union of India shall give wide publicity in the 

electronic and print media including radio and 

television networks that it is not mandatory for a 

citizen to obtain an Aadhaar card; 

1 

i 

2. The production of an Aadhaar card will not be 
condition for obtaining any benefits otherwise due to a 
citizen; 

3. The Unique Identification Number or the 'Aadhaar 
card will not be used by the respondents for any 
purpose other than the PDS Scheme and in particular 
for the purpose of distribution of foodgrains, etc. and 
cooking fuel, such as kerosene. The Aadhaar card 
may also be used for the purpose of the LPG 
Distribution Scheme; 

4. The information about an individual obtained by the 
Unique Identificatjon Authority of India while issuing an ■ 
Aadhaar card shaill not be used for any other purpose, 
save as above, except as may be directed by a Court 
for the purpose of criminal investigation. 

Ordered accordingly.” 

* 

* 

12) In nutshell, the direction is that obtaining an Aadhaar Card is not 

mandatory and the benefits due to a citizen under any scheme 

are not to be denied in the absence of Aadhaar Card. Further, 

unique identification number or the Aadhaar Card was to be used 

only for the PDS Scheme and, in particular, for the purpose of 

distribution of food grains etc. and cooking . fuels such as 

Kerosene and LPG Distribution Scheme, with clear mandate that 

* 

it will not be used by the respondents for any other purpose. 
Even the information about the individual collected while issuing 


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.50 

an Aadhaar Card was not to be used for any other purpose, 

except when it is directed by the Coutf for the purpose of criminal 

investigation. Thus, making of Aadhaar Card was not to be made 

mandatory and it was to be used only for PDS Scheme and LPG 

Distribution Scheme. Thereafter, certain 'applications for 

modification of the aforesaid order dated August 11, 2015 was 

filed before this Court by the Union of India and a five Judges 

Bench of this Court was pleased to pass the following order: 

“3. After hearing the learned Attorney General for 
India and other-learned senior counsels, we are of the 
view that in paragraph 3 of the Order dated August 11, 

2015, if we add, apart from the other two Schemes,’ 

* namely, PDS Scheme and the LPG Distribution 
Scheme, the Schemes like The Mahatma Gandhi 
National Rural Employment Guarantee Scheme 12 
(MGNREGS), National Social Assistance Programme 
(Old Age Pensions, Widow Pensions, Disability 
Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) 
and Employees’ Provident Fund Organisation (EPFO) 

• for the present, it would not dilute earlier order passed 
by this Court. Therefore, we now include the aforesaid 
Schemes apart from the other two Schemes that this 
Court has permitted in its earlier order dated Auqust 
11,2015. , y 

■ * 

4. We impress upon .the Union of India that it shall 

strictly follow all the earlier orders passed by this Court 

commencing from September 23, 2013. 

> 

5. We will also make it clear that the Aadhaar card 
Scheme is purely voluntary and it cannot be made 
mandatory till the matter is finally decided by this 
Court one way or the other." 

Thus, Aadhaar is permitted for some more schemes as well. 


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13) The petitioner herein, laying stress on the above orders, plead 
that from a perusal of the various interim orders passed by this 
Court it is amply clear that the Court has reiterated the position 
that although there, is no interim order against the collection of 

information from the citizens for the purpose of enrolment for 

* 

Aadhaar, the scheme is purely voluntary and the same is not to 
be made mandatory by the Government, 


14) While matters stood thus, the Government of India brought in a 
legislation to govern the Aadhaar Scheme with the' enactment of 
the Aadhaar (Targeted Delivery of Financial and other subsidies, 
benefits and services) Act, 2016 (hereinafter referred to as the 
‘Aadhaar Act’). 


15) Introduction to the said Act gives the reasons for passing that Act 
and Statement of Objects and Reasons mention the objectives 
sought to be achieved with the enactment of Aadhaar Act. 

Introduction reads as under: 

"The Unique Identification Authority of India was 
established by a resolution of the Government of India 
in 2009. It was meant primarily to lay down policies 
and to implement the Unique Identification Scheme, 

■ by which residents of India were to be provided unique 
identity number. This number would serve as proof of 
identity and could be used for identification of 
beneficiaries for transfer of benefits, subsidies, 
services and other purposes. 


Writ Petition (Civil) No. 247 of 2017 &._.Q _£S.. 


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9* 

Later on, it was felt that the process of enrolment, 
authentication, security, confidentiality and use of 
4 Aadhaar related information be made statutory so as 
to facilitate the use of Aadhaar number for delivery of 
various benefits, subsidies and services, the 
expenditures of which were incurred from or receipts 
therefrom formed part of the Consolidated Fund of 
India. 

0 

The Aadhaar (Targeted Delivery of Financial and 
Other Subsidies, Benefits and Services) Bill, 2016 
inter alia, provides for establishment of Unique 
Identification Authority of lndia p< issuance of Aadhaar 
number to individuals, maintenance and updating of 
information in the Central Identities Data Repository, 

Issues pertaining ’ to security,, privacy and 
confidentiality of information as well as offences and 
penalties for contravention of relevant statutory . 
provisions.” 

16) In the Statement of Objects and Reasons, it is inter alia 

mentioned that though number of social benefits schemes have 

been floated by the Government, the failure to establish identity of 

an individual has proved to be a major hindrance for successful 

1 ‘ 

implementation of those programmes as it was becoming difficult 

t 

to ensure that subsidies, benefits and services reach the 
unintended beneficiaries in the absence of a credible system to 
authenticate identity of beneficiaries. Statement of Objects and 
Reasons also discloses that over a period of time, the use of 
Aadhaar Number has been increased manifold and, therefore, it 
is also necessary to take measures relating to ensuring security 
of the information provided by the individuals while enrolling for 
Aadhaar Card. Having these parameters in mind, para 5 of the 


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32 

Statement of Objects and Reasons enumerates the objectives 
which Aadhaar Act seeks to achieve. It reads as under; 

""5, The Aadhaar (Targeted Delivery of financial and 

Other Subsidies,. Benefits and Services) Bill, 2016 . 

inter alia , seeks t6 provide for - 

(a) issue of Aadhaar numbers to individuals on 
providing his demographic and biometric 
information to the Unique Identification Authority 

. of India; ' 

J 4 

♦ 

(b) requiring Aadhaar numbers for identifying an 
individual for delivery of benefits, subsidies, and 
services the expenditure is incurred from or the 
receipt therefrom forms part of the Consolidated 
Fund of India; 

(c) authentication of the Aadhaar number of an 
Aadhaar number holder in relation to his 
demographic and biometric information; 

(d) establishment of the Unique Identification 
Authority of India consisting of a Chairperson, two 
Members and a Member-Secretary to perform 
functions in pursuance of the objectives above; 

(e) maintenance and updating the information of 
individuals in the Central Identities Date 
Repository in such manner as may be specified 
by regulations; 

(f) measures pertaining to security, privacy and 
confidentiality of information in possession or 
control of the Authority including information 
stored in the Central Identities Date Repository; 
and 

* 

(g) offences and penalties for contravention of 
relevant statutory provisions.” 

17 ) Some of the provisions of this Act,*which have bearing on the 


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n 

matter that is being dealt with herein, may be taken note of. 
Sections 2(a), 2(c), 2(d), 2(e), 2(g), 2(h'), 2(k), 2(i), 2(m), 2(n), 

T 

Section 3, Section 7, Section 28, Section 2.9.and Section 30 

♦ 

i 

reads as under: 

* 

"2(a) "Aadhaar number" means an identification 
number issued to an individual under sub-section (3) 
of section 3; 


XXX XXX XXX 

2(c) "authentication" means the process by which the 
Aadhaar number alongwith demographic information 
or biometric information of an individual is submitted to 
the Central Identities Data Repository for its 
verification and such Repository verifies the 
correctness, or the lack thereof, on the basis of 
informatipn available with it; 

2(d) "authentication record" means the record of the 
time of authentication and identity of the requesting 
entity and 1 the response provided by the Authority 
thereto; 

2(e) "Authority" means the Unique Identification 
Authority-of India established under sub-section (1) of 
section 11; 


. XXX XXX XXX 

2(g) "biometric information" means photograph, finger 
print, Iris scan, or such other biological attributes of an 
individual as may be specified by regulations;- 

2(h) "Central Identities Data Repository" means a 
centralised database in one or more locations 
containing all Aadhaar numbers issued to Aadhaar 
number holders along with the corresponding 
demographic information and biometric information of 

such individuals and other information related thereto; 

« 

XXX XXX XXX 


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i 

2(k) "demographic information" includes information 
relating to the name, date of birth, address and other 
relevant information of an individual, as may be 
specified by regulations for the purpose of issuing an 
Aadhaar number, but shall not include race, religion, 
caste, tribe, ethnicity, language; records of entitlement, 
income or medical history; 

2(1) "enrolling agency" means an agency appointed by 
the Authority or a Registrar, as the case may be, for 
collecting demographic and biometric information of 
individuals under this Act; 

2(m) "enrolment" means the process, as may be 
specified by regulations, to collect demographic and 
biometric, information from individuals by the enrolling 
agencies’for the purpose of issuing Aadhaar numbers 
to such individuals under this Act; 

2(n) "identity information" in respect of an individual, 
includes hfs Aadhaar number, his biometric 
information and his demographic,information; 

3. Aadhaar number. - (1) Every resident shall be 
entitled to obtain an Aadhaar number by submitting his 
demographic information and biometric information by 
undergoing the process of enrolment: 

Provided that the Central Government may, from 
time to time, notify such other category of individuals 
who may be entitled to obtain an Aadhaar number. 

(2) The enrolling agency shall, at the time of 
enrolment, inform the individual undergoing enrolment 
of the following details in such manner as may be 
specified by regulations, namely: 

(a) ■ the manner in which the information shall be 

used; 

‘(b) the nature 'of recipients with whom the 
information is intended to be shared during 
authentication; and 

(c) the existence of a right to access information, 
the procedure for making requests for such 


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<56 

access, and details of the person or department 
in-charge to whom, such requests can be made. 

(3) On receipt of the demographic information and 
biometric information under sub-section (1), the 
Authority shall, after verifying the information, in such 
manner as may be specified by regulations, issue an 
Aadhaar number to such individual. 

XXX XXX XXX 

7. Proof of Aadhaar number necessary for receipt 
of certain subseidies, benefits and services, etc. - 

The Central Government or, as the case may be, the 
State Government may, for the purpose of establishing 
identity of an individual as a condition for receipt of a 
subsidy, benefit or service for which the expenditure is 
incurred from, or the receipt therefrom forms part of, 
the Consolidated Fund of India, require that such 
individual undergo authentication, or furnish proof of 
possession of Aadhaar number or in the case of an 
individual to whom no Aadhaar number has been 
assigned, such individual makes an application for 
enrolment: 


Provided that if an Aadhaar number is not assigned 
to an individual, the individual shall be offered 
^ alternate and viable means of identification for delivery 
of the subsidy, benefit or service. 

XXX \ XXX XXX 

28. Security and confidentiality of information - (1) 

The Authority shall ensure the security of identity 
information and authentication records of individuals. 

(2) Subject to the provisions of this Act, the Authority 
shall insure confidentiality of identity information and 
authentication records of individuals. 

(3) The Authority shall take all necessary measures to 
ensure that the information in the possession or 
control of the Authority, including information stored in 
the Central Identities Data Repository, is secured and 
protected against access, use or disclosure not 
permitted under this Act or regulations made 


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rt 

thereunder, and against accidental or intentional 
destruction, loss or damage. 

(4) Without prejudice to sub-sections (1). and (2), the 
Authority shall— ’ . 

(a) adopt and implement appropriate technical and 
organisational security measures; 

(b) ensure that the agencies, consultants, advisors 
or other persons appointed or engaged for 
performing any function of the Authority under 
this.Act, have in place appropriate technical and 
organisational security measures for the 
'information; and 

(c) ensure -that the agreements or arrangements 
entered into with such agencies, consultants, 
advisors or other persons, impose obligations 
equivalent to those imposed on the Authority 
under this Act, and require such agencies, 
consultants, advisors and other persons to act 
only on instructions from the Authority. 

(5) Notwithstanding anything contained in any other 
law for the time being in force, and save as otherwise 
provided in this Act, the Authority or any of its officers 
or other employees or any agency that maintains the 
Central Identities Data Repository shall not, whether 
during his service or thereafter, reveal any information 
stored in the Central Identities Data Repository or 
authentication record to anyone: 

• Provided that an • Aadhaar number holder may 
request the Authority to provide access to his identity 
information excluding his core biometric information in 
such manner as may be specified by regulations. 

29. Restriction on sharing information. - (1) No 

core biometric information, collected or created under 
this Act, shall be— 

(a) shared with anyone for any reason 
whatsoever; or 

(b) used for any purpose other than generation 


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of Aadhaar numbers and authentication under this Act. 

(2) The identity information, other than core biometric 
information, collected or created under this Act may be 
shared only in accordance with the provisions of this 
Act and in such manner as may be specified by 
regulations. 

(3) No identity information available with a requesting 
entity shall be— ; 

(a) used for any purpose, other than that specified to 
the individual at the time of submitting any 
identity information for authentication; or 

(b) disclosed further, except with the prior consent of 
■ the individual to whom such information relates. 

(4) No Aadhaar number or core biometric information 
collected- or created under this Act in respect of an 

• Aadhaar number holder shall be published, displayed 
or posted publicly, except for the purposes, as may be 
specified by regulations. 

30. Biometric information deemed to be sensitive 
personal information. -The biometric information 
collected and stored in electronic form, in accordance 
with this Act and regulations made thereunder, shall 
be deemed to be "electronic record" and "sensitive 
- personal data or information", and the provisions 
contained in the Information Technology Act, 2000 (21 
of 2000) and the rules made thereunder shall apply to 
such information, in addition to, and to the extent not 
in derogation of the provisions of this Act. 

Explanation.- For the purposes of this section, the 
expressions— 

(a) "electronic form" shall have the same meaning as 
assigned to it in clause (r) of sub-section (1) of 
section 2 of the Information Technology Act, 2000 
(21 of 2000); 

(b) "electronic record" shall have the same meaning 
as assigned to it in clause (t) of sub-section (1) of 
section ^ of the Information Technology Act, 2000 
(21 of 2000); 



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"sensitive personal data or information" shall have the 
same meaning as assigned to it in clause (iii) of the 
Explanation to section 43A of the Information 
Technology Act, 2000 (21 of 2000).” 

That apart, Chapter VII which comprises Sections 34 to 47, 

♦ 

mentions various offences and prescribes penalties therefor. 

18) Even the Constitutional validity of the aforesaid Act is challenged 
in this Court in Writ Petition (C) No. 797 of 2016, which has also 
been tagged along with Writ Petition (C) No. 494 of 2012, the lead 
matter in the batch of matters which has been referred to the 
Constitution Bench. 

4 

19) At this juncture, by Finance Act, 2017, Income Tax Act is 

• i 

amended with introduction of Section 139AA which provision has 

already been reproduced. It would be necessary to mention at 

this stage that since challenge to the very concept of Aadhaar i.e. 

unique identification number is predicated primarily on Right to 

Privacy, when instant writ petitions were initially listed before us, 

we suggested that these matters be also tagged along with Writ 

Petition (C) No. 494 of 2012 and other matters which have been 

* 

referred to the Constitution Bench. Pertinently, in the counter 
affidavit filed on behalf of the Union of India also, plea has been 
taken that the matters be tagged along with those pending writ 


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[CO 

petitions and be decided by a larger Bench. On this suggestion, 

\ 

reaction of the learned- counsel for the petitioners was that 

> 

petitioners would not be pitching their case on the ‘Right to 
Privacy' and would be questioning the validity of Section 139AAof 

* t 

the Act primarily on Articles 14 and 19 of the Constitution. On this 

i 

» 

basis, their submission was that this Bench should proceed to 
adjudicate the matter. Therefore, we make it clear at the outset 
that we are not touching upon the privacy issue while determining 
the question of validity 1 of!'the impugned provision of the Act. 

The Arguments 

20) Mr, Datar,. learned senior counsel who opened the attack on 

behalf of the petitioners, started by stating the historical fact 

pertaining to introduction of Aadhaar Scheme, leading to the 

passing of Aadhaar Act and thereafter the impugned provision 

and referring to the various orders passed by this Court from time 

to time (which have already been reproduced above). After this 

narration, his first submission was that this Court had, time and 

again, emphasised by various interim orders that obtaining an 

♦ 

Aadhaar Card would be a voluntarily act on behalf of a citizen and 

« 

it would not be made mandatory till the pendency of the petitions 
which stand referred to the Constitution Bench now. He further 


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[o\ 

submitted that even Section 3 of the Aadhaar Act spells out that 

i 

enrollment of Aadhaar is voluntarily and/consensual and not 
compulsory or by way of executive action. He also drew our 
attention to the proviso to Section 7 of the Aadhaar Act as per 

which a person is not to be deprived of subsidies as per the 

* 

various schemes of the Government as the said proviso clearly 

mentions that if an Aadhaar Number js not assigned to an 

individual, he shall be offered alternate and viable means of 

% 

identification for delivery of subsidy, benefit or service. According 

to him, there was a total reversal of the aforesaid approach for 

assessees under the Income Tax Act and those who wanted to 

apply for issuance of PAN Card inasmuch as not only it was made 

♦ 

compulsory for them to get Aadhaar enrollment number, but 
serious consequences were also provided for not adhering to this 
requirement, in their cases, PAN issued to these assessees had 
; to become invalid, that too from the retrospective effect i.e. from 
the date when it is issujed. Having regard to the aforesaid, the 
legal submission of Mr. Qatar was that Section 139AA was 
unconstitutional and without legislative competence inasmuch as 
. this provision was enacted contrary to the binding nature of the 
judgments/directions of this Court which was categorical that 
Aadhaar had to remain voluntary. Questioning the legislative 


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\OT. 

competence of the legislature to enact this particular law, 

♦ I 

argument of Mr. Datar was that there were certain implied 

7 

limitations of such a legislative competence and one of these 
' limitations was that legislature was debarred from enacting a law 
contrary to the binding nature of decisions of this Court. His 

i 

submission in this behalf was that though it was within the 

competence of the legislature to remove the basis of the 

Supreme Court decision, at the same time, legislature could not 

* 

go against the decision which was law of the land under Article 

141 of the Constitution. He argued that, in the instant case, 

legislature could not be construed as removing the basis of the 

various orders of this Court relating to Aadhaar Scheme itself but 
% 

* 

the impugned provision was inserted in the statute book violating 
the binding nature of those orders. 

21) Dilating on the aforesaid submissions, Mr. Datar argued that the 
earlier orders of this Court dated August 23, 2015 of the main writ 
petition specifically permitted Aadhaar to be used only for LPG 
and PDS. By an order dated October 15, 2015, at the request of 
the Union of India, it was permitted to be extended to three other 
schemes, namely, MNREGA, Jan Dhan Yojana etc. The 
Constitution Bench made it explicitly clear that the Aadhaar 


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i<>3 

scheme could not be used for any other purpose. According to 

him, the Parliament did not in any manner remove the basis of 

these decisions. The Aadhaar scheme, as enacted under the 

Aadhaar Act, continued to retain its voluntary character (as 
« 

demonstrated by Section 3 of that Act) that existed when Aadhaar 

j 

was operating under executive instructions. Nonetheless, even if 

it is argued that the above orders were passed when Aadhaar 

was based on executive instructions, decisions of this Court 

continue to be binding as they are made in exercise of the judicial 

♦ 

power. According to Mr. Datar, any judgment of a court, whether 
interim or final, whether rendered in the context of a legislation, 
delegated legislation (rules/notifications) or even executive action 
will continue to be binding. In view of the judgment of this Court 
in Ram J away a Kapoor v. State of Punjab 3 , which held that 
executive and legislative powers are co-extensive under the 
Constitutional scheme, unless the basis of the judgment is 

1 i 

removed by a subsequent enactment, it cannot be argued that a 
decision based on executive instruction is less binding than other 
judgments/orders of the Supreme Court, or that the 

judgment/order loses force if the executive instruction is replaced 

♦ 

v 

by law. 


3 (1955) 2 SCR 225 

i 

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toM 


22) He also referred to the decision in the case of Madan Mohan 
Pathak v. Union of India 4 , wherein the directipn of the Calcutta 

i 

High Court to pay bonus to Class-Ill and Class-IV employees was 
sought to be nullified by a statutory amendment. This was held to 
be impermissible by the seven Judges’ Bench. He also relied 
upon Bakhtawar Trust v. M.D. Narayan s , wherein, after citing the 
case-laws on this point, the Court reiterated the principle as 
follows: 


M,, 25. The decisions referred to above, manifestly 
show that it is open to the legislature to alter the law 
retrospectively, provided the alteration is made in such 
a manner that it would no more be possible for the 
Court to arrive at the same verdict. In other words, the 
very premise of the earlier judgment should be 
upro.oted, thereby resulting in a fundamental change 
of the circumstances upon which -it was founded. 

XXX XXX XXX 

27. Here, the question before us is, whether the 
impugned Act has passed the test of constitutionality 
by .serving to remove the very basis upon which the 
decision of the High Court in the writ petition was 
based. This question gives rise to further two 
questions - first, what was the ba sis of the earlier 
decision: and second, what, if any, may be sa id to.be 
the removal of that basis? 

(emphasis supplied)" 

23) Based on the above principles, Mi*. Datar’s fervent plea was that: 
(i) The basis of the earlier order of the Supreme Court is that 
Aadhaar will be made a voluntary scheme, it is a 


4 AIR 1978 SC 803 

5 (2003) 5 SCC 298 


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105 

0 

consensual' scheme, and that it is to be expressly limited to 
six specific purposes; and 

(ii) No attempt whatsoever has been made to Y remove the basis 
of these earlier orders. t This alone renders Section 139AA 
unconstitutional. 

i 

24) Arguing that basis of the orders of this Court was not removed, 

plea of Mr. Datar was that the basis of the said orders was that 

serious constitutional concerns had been raised about.the 

Aadhaar scheme, and that therefore, pending final decision on its 

validity by the Supreme Court, it ought to remain voluntary. 

* 

Consequently, in order to remove the basis of these orders, the 
Parliament would have to pass a law overturning the voluntary 
character of Aadhaar itself. Notably, although Parliament, did 

* 4 

« 

have a chance to do so, it elected not to. The Aadhaar Act came 
* 

into force on March 25, 2016. This was after the order of this 
Court. Significantly, however, the Parliament continued to 

maintain Aadhaar as a voluntary scheme vide Section 3 of the 

; 

t 

said Act. Mr. Datar submitted that if Parliament so desired, it 
could have removed the basis of this Court’s order by: 

(i) Amending Section 3 so that Aadhaar is made compulsory 

4 

F 

for every resident of India; or 

(ii) Introducing either a proviso or adding a sub-section in 
Section 3 to the following effect: 


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io6 

"Notwithstanding anything contained in sub-section 
(1), the Central Government may notify specific 
purposes for which obtaining Aadhaar numbers may 
be made mandatorV in public interest.” r 

25) However, Parliament elected not to do so as there is no 
non-obstante clause. Instead of making enrollment for Aadhaar 
itself mandatory, it made Aadhaar mandatory for fifing income-tax 
returns, even as enrollment itself remained voluntary under 
Section 3 of the Aadhaar Act. He, thus, submitted that far from 
taking away the basis of the earlier Supreme Court orders. The 
Aadhaar Act strengthened and endorsed those orders, while 
Section 139AA impermissibly attempted to overturn them without 
taking away their basis. Indeed, Parliament did not even sof ar 
as include a non-obstante clause in Section 139M, which would 
have made it clear that Section would override contrary laws - 
clearly indicating once again that Section 13AA was not taking 
away the basis of the Court’s orders. The emphasis of Mr. Datar 

4 

is that unless suitable/appropriate amendments are made to the 
Aadhaar Act, the orders of the Court cannot be overruled by the 
newly inserted Section 139AA. 

26) On the aforesaid edifice, the argument built and developed by Mr. 
Datar is that although the power of Parliament to pass laws with 
respect to List-1 and List-Ill is plenary, it is subject to two implied 


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limitations: * 

(i) Parliament or any State legislature cannot pass any law that 

i 

overrules a judgment; before any law is passed which may 

result in nullifying a decision, it is mandatory to remove the 

basis of the decision. Once the basis on which the earlier 

decision/order/judgment is delivered is removed, Parliament 

can then pass a;law prospectively or retrospectively and 

* 

with or without a validation clause. 

(ii) Implied limitation not to pass contrary laws: The doctrine of 

harmonious- construction applies when there is an 

* i 

accidental collision or conflict between two enactments and 
the Supreme Court has repeatedly read down one provision 
to give effect to other. Thus, both the provisions have to be 

given effect to. But if the collision or conflict is such that 

■ 

¥ 

one provision cannot co-exist with another, then the latter 
provision must, be struck down. In the present case, 
obtaining an Aadhaar number continues to be voluntary and 
explicitly declared to be so. Once the Aadhaar Card is 
voluntary, it cannot be made mandatory by the impugned 
Section 139AA of the Act. As long as the Aadhaar 
enactment holds the field, there is an implied limitation on 

* 

the power of Parliament not to pass a contrary law. 


Writ Petitio n (Civil) No. 247 of 2017 & Ors, 


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\ 0 * 

27) He also advanced two examples of such an implied limitation: 

(i) If Parliament, by a statute, makes medical service in rural 

t 

‘ areas an attractive option for doctors with incentives like 
preference for post-graduate admissions, higher 
pay/aliowances, or even lower tax, such a scheme is 
voluntary and only those doctors who want those benefits 
may opt for it. While such a statute exists, it will not be 

4 

permissible for Parliament to simultaneously amend the 

Medical Council Act, 1956 and state that absence of rural 

service will be a ground to invalidate the doctor’s certificate 

of practice. Thus, what is statutorily voluntary under one 

* 

... "r 

Parliamentary Act cannot be made statutorily compulsory 
♦ 

under another Parliamentary Act at the same time. 

(ii) Second example given by Mr. Datar was that making 

Aadhaar compulsory -only for individuals with severe 
consequences of cancellation of PAN cards and a deeming 
provision that they had never applied for PAN is 

discriminatory when such a' provision is not made 

* 

mandatory for other assessees. 

28) Mr. Datar's next plea of violation of Article 14 was based by him 
on the application of the twin-test of classification viz. there 

4 

> 

I 

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\ 



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1 05 

should be a reasonable classification and that this classification 
should have rational nexus with the objective Sought to be 
achieved as held in R.K. Dalrnia v. Justice S.R., Tendolkar •, Mr, 
Datar conceded that first test was met as individual assessees 

4 

1 

form a separate class and, to this extent, there is a rational 

i 

differentiation between individuals and other categories of 
assessees. The main brunt of his argument was on the second 

' I 

limb of the twin-test of classification which according to him is not 
satisfied because there is no rational nexus with the object sought 

to be achieved. 

* ; 

29) Third argument of Mr. Datar was that the affected persons by 
Section 139AA are individuals who are professionals like lawyers, 
doctors, arphitects etc. and lakhs of businessmen having small or 
micro enterprises. By imposing a draconian penalty of cancelling 
their PAN cards and deeming that they had never applied for 
them, there is a direct infringement to Article 19(1)(g). The 
consequences of not having a PAN card results in a virtual civil 
death” and it will be impossible to carry out any business or 
professional activity under Rule 114B of the Income Tax Rules, 
1962 (hereinafter referred to as the 'Rules’), it will not be possible 
to operate bank accounts with transactions above Rs.50,000/-, 


6 (1959) SCR 279 

« 

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use credit/debit cards, purchase motor-vehicles, purchase 
property etc. 


30) Elaborating this point, it was submitted by him that once it is 

shown that the right under Article 19(1)(g) has been infringed, the 

burden shifts to the State to show that the .restriction is 

reasonable, and in the interests of the public, under Article 19(6) 

of the Constitution. He referred to Modem Dental College and 

Research Centre & Ors. v. State of Madhya Pradesh 7 , wherein 

this Court held that the correct test to apply in the context of 

Article 19(6) was the test'.of proportionality: 

"... a limitation of a constitutional right will be 
constitutionally permissible if: (i) it is designated for a 
proper purpose; (ii) the measures undertaken to 
effectuate such a limitation are rationally connected to 
the fulfilment of'that purpose; (iii) the measures 
undertaken are necessary in that there are no 
alternative measures that may similarly achieve that 
same purpose with a lesser degree of limitation, and 
finally (iv) there needs to be a proper relation 
(‘proportionality strict sense’ or ‘balancing’) between 
the importance of achieving the proper purpose and 
the social importance of preventing the limitation on 
the constitutional right.” 


31) Mr. Datar also submitted that even if the State succeeds in 

* 

showing a proper purpose and a rational connection with the 
purpose, thereby meeting the test of Article 14, the impugned law 
clearly fails on clauses (iii) (narrow tailoring) and (iv) (balancing) 


7 . (2016) 7 SCC 353 

t 

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of the proportionality test of the above decision. He submitted 

i 

that the State has failed entirely to show that the cancellation of 
PAN Cards as a consequence of not enrolling for.Aadhaar with its 
accompanying dracorjian consequences for the economic life of 
an individual is narrowly tailored to achieving its goal of tax 
compliance. It is also submitted that in accordance with the 
arguments advanced above, the State’s own data shows that the 
problem of duplicate PANs was minuscule, and the gap between 
the tax payer base and the PAN Card holding population can be 

explained by plausible factors other than duplicates and forgeries. 

♦ ♦ ■ 

He questioned the wisdom of legislature in compelling 99.6% of 
the taxpaying citizenry to enroll for Aadhaar (with the further 
1 prospect of seeding) in order to weed out the 0,4% of duplicate 
PAN Cards, as it fails the proportionality test entirely. 

* 

32) On the principle of proportionality, he submitted that this principle 
was applied in the R.K. Dalmia 8 case as per the following 
passage: 

“11 ... 

(d) that the Legislature is free to recognize degrees of 
harm and may confine its restrictions to those cases 
where the need is deemed to be the clearest; 

(e) that in order to sustain the presumption of 
constitutionality the court may take into consideration 
matters of common knowledge, matters of common 

8 Footnote 6 above 

Writ Petition {Civil) No . 247 of 2017 & Ors, , pa 9* 35 







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U2- 

report, the history of the times and may assume every 
state of facts which can be conceived existing at the 
time of legislation;...” . 

7 

33) Basic premise of the submissions of Mr. Shyam Divan, learned 

senior advocate, was also the same as projected by Mr. Datar. 

He insisted that Section 139AA of the Act, which had made 

0 

Aadhaar mandatory for income-tax assessees, is 

unconstitutional. However, in his endeavour to plead that the 

provision be declared unconstitutional, he approached the subject 

from an altogether different premise, giving another perception to 

the whole issue. His basic submission was that every individual 

or citizen in this country had complete control over his/her body 

* 

and State capnot insist any person from giving his/her finger tips 

or iris of eyes, as a condition precedent to enjoy certain rights. 

He pointed out that ail the petitioners in his writ petition were 

holding PAN Cards and. were income-tax assessees but had not 

« 

* 

enrolled under Aadhaar Scheme. They were the consentions 
persons in the society and did not want to give away their finger 
tips or iris, being consentions objectors, that too, to private 

• i 

persons who were engaged as contractors/private enrollers by 
the Government for undertaking the job of enrolment under the 
Aadhaar. It was submitted that the data given to such persons. 
were not safe and there,jwas huge possibility that the same may 


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be leaked. Further, requirement of giving Aadhaar number for 
every transaction amounted to surveillance by the State and the 

T 

entire profile of such persons would be available to the State. He 

also pointed out that with today’s technology, there was every 

possibility of copying the fingerprint and even the iris images. 

Various cases of fake Aadhaar Card had come to light and even 

as per the Government’s statement, 3.48 lakh bogus Aadhaar 
* • 

Cards were cancelled. There were instances of Aadhaar leak as 
well. Even hacking was possible. He conceded that these were 
the issues within the realm of ‘Right to Privacy’ which were to be 
decided by the Constitution Bench. However, according to him, 
various orders passed by this Court in those petitions clearly 
reflect that the Court had given the directions that Aadhaar 
Scheme had to be voluntarily; there would not be any illegal 
implants; and no one would suffer any consequences if he does 
not enroll himself under the Aadhaar Scheme. He also submitted 
that even the Aadhaar Act was voluntary in nature which creates 
rights for citizens and not obligations. According to him, Aadhaar 
Act envisages free consent for getting certain benefits under 

f 

social welfare schemes of the Government. On the other hand, 

0 

Section 139AA of the Act is compulsory and coercive. Pointing 
« 

out that if Aadhaar number is hot mentioned in the income-tax 


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returns, the effect provided under Section 139AA of the Act is that 
the PAN Card held by such a person would itself become invalid 

4 

and inoperative which will lead to various adverse consequences 

inasmuch as for many other purposes as well, PAN Card is used, 

♦ 

♦ 

He referred to Sections 206AA, 196J, 271F and 272B of the Act 
and Rule 114B of the Rules to demonstrate this. He also referred 
to the provisions of Identification of Prisoners Act, 1920 which 
require a prisoner to give his fingerprints for record and submitted 

that making Aadhaar compulsory amounted to treating every 

* 

person at par with a prisoner. 

34) On the aforesaid premise, Mr. Divan articulated his legal 

submissions as under: ; 

* 

(i) Section 139AA of the Act is contrary to the concept of 
‘limited Government’. 

(ii) The impugned provision coerces the individuals to part with 

their private information which was a part of human dignity and, 
thus, the said provision was violative of Article 21 of the 
Constitution as it offended human dignity. 

(iii) The impugned provision creates the involvement which can 
be used for surveillance. 

(iv) This provision converts right under Aadhaar Act to duty 


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under the Income Tax Act. 


ws 


35) Elaborating on the argument predicated on the concept of 
Limited Government', Mr. Divan submitted that the Constitution of 
India was the basic law or grundnorm which ensures democratic' 

t 

governance in this country. Though a sovereign, country, its 
governance is controlled by the provisions of the Constitution 
which sets parameters within which three wings of the State, 
namely, Legislature, Executive and Judiciary has to function. 
Thus, no wing of the State can breach the limitations provided in 
the Constitution which employs an array of checks and balances 
to ensure open, accountable government where each wing of the 
State performs its actions for the benefit of the people and within 
its sphere of responsibility. The checks and balances are many 
and amongst them are the respective roles assigned by the 
Constitution to the legislature, the executive and the judiciary. 
Under India’s federal structure, with a distribution of legislative 
authority between the Union government and the States, the 
fields -of legislation and corresponding executive authority are 
also distributed between the Union and the States. Provisions in 
the Constitution such as the fundamental rights chapter (Part III) 
and the chapter relating to inter-state trade (Part XIII) also 




I 




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circumscribe the authority of the State. These limitations on the 
power of the State support, the notion of 'limited government'. In 
this sense, the expression ‘limited government’ would mean that 
each wing of the State is restricted by provisions of the 
Constitution and other laws and is required to operate within its 
legitimate sphere. Exceeding these' limits would render the action 
of the State ultra vires the Constitution or a particular law. 

He further argued that the concept of 'limited government' 
may also be understood in a much broader and different sense. 

y 

This notion of a limited government is. qua the citizenry as a 
whole. There are certain things that the State simply cannot do, 
because the action fundamentally alters the relationship between 
the citizens and the' State. The wholesale collection of biometric 
data including finger prints and storing it at a central depository 
per se puts the State in an extremely dominant position in relation 
to the individual citizen.! Biometric data belongs to the concerned 
individual and the State cannot collect or retain it to be used 
against the individual or to his or her prejudice in the future. 
Further the State cannot put itself in a position where it can track 
an individual and engage in surveillance. The State cannot 
deprive or withhold the enjoyment of rights and entitlements by an 
individual or makes such entitlements- conditional on a citizen , 

• i 


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in 

parting with her biometrics. Mr. Divan referred to the judgment of 

* 

this Court in State of Madhya Pradesh & Anr. v. Thakur Bharat 
Singh 9 where the concept of limited government is highlighted in 
the following manner: 

“5. ...Al! executive action which operates to the 
prejudice of any person must have the authority of law 
to support it, and the terms of Article 358 do not 
• detract from that rule. Article 358 expressly authorises 
the State to take legislative or executive action 
provided such action was competent for the State to 
make or take, but for the provisions contained in Part 
III of the Constitution. Article 358 does not purport to 
invest the State with arbitrary authority to take action 
to the prejudice of citizens and others: it merely 
provides that so long as the proclamation of 
emergency subsists laws may be enacted, and 
exclusive action may be taken in pursuance of lawful 
authority, which if the provisions of Article 19 were 
operative would have been invalid. Our federal 
structure is founded on certain fundamental principles: 

( 1 ) the sovereignty of the people with limited 
Government authority i.e. the Government must be 
conducted in accordance with the will of the majority of 
the people. The people govern themselves through 
their representatives, whereas the official agencies of 
* the executive Government possess only such powers 
as have been conferred upon them by the people; (2) 

There is' a distribution of powers between the three 
organs of the State — legislative, executive and 
judicial — each organ having some check direct or 
indirect on the other; and (3) the rule of law which 
includes judicial review of arbitrary executive action. 

As pointed out by Dicey in his Introduction to the study 
of the Law of the Constitution, 10th Edn., at p. 202, the 
expression “rule of law” has three meanings, or may 
be regarded from three different points of view. “It 
means, in the first place, the absolute supremacy or 
predominance of regular law as opposed to the 
influence of arbitrary power, and excludes the 
existence of arbitrariness, of prerogative, or even of 
wide discretionary authority on the part of the 


9 AIR 1967 SC 1170 (1967) 2 SCR 454 


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Government'’, At p. 188 Dicey points out: 

“In almost every continental community the 
executive exercises far wider discretionary 
authority in the matter of arrest, of temporary 
imprisonment, of expulsion from its territory, 
and the like, than is either legally claimed or 
in fact exerted by the Government in 
England: and a study of European politics 
now and again reminds English readers that 
wherever there is discretion there is room for 
arbitrariness, and that in a republic no less 
than under- a monarchy discretionary 
authority on {he part of the Government must 
mean insecurity for legal freedom on the part 
of its subjects.” 

. i 

We have adopted under our Constitution not the 
continental system but the British system under which 
the rule'of law prevails. Every Act done by the 
Government or by its officers must, if it is to operate to 
the prejudice .of any person must, be supported by 
some legislative authority." 


36) Relying on the aforesaid observations, Mr. Divan’ submitted that 
the recognition of the distinction between an individual or person 
and the State . is the single most important factor that 
distinguishes a totalitarian State from one that respects 
individuals and recognizes their special identity and entitlement to 
dignity. The Indian Constitution does not establish a totalitarian 
State but creates a State that is respectful of individual liberty and 
constitutionally guaranteed freedoms. The Constitution of India is 

note charter of servitude. 

37) Proceeding further, another submission of Mr. Divan, as noted 


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above, was that Section 139AA which coerces the individuals to 
part with their personal information was unconstitutional. He 

t 

submitted that a citizen is entitled to enjoy all these rights 

including social and civil rights such as the right to receive an 

education, a scholarship, medical assistance, pensions and 

benefits under government schemes without having to part with 

his or her personal biometrics. An individual s biometrics such as 

finger prints and iris scan are the property and entitlement of that 

individual and the State cannot coerce an individual or direct him 

or her to part with biometrics as a condition for the exercise of 

rights or the enjoyment of entitlements. Every citizen has a basic 

# 

right to informational self-determination and the state cannot 

exercise dominion over a-citizen’s' proprietary information either in 

* 

individual cases or collectively so as to place itself in a position 

* 

where it can aggregate information and create detailed profiles of 
individuals or facilitate this process. The Constitution of India is 
not a charter for a Police State which permits the State to 
maintain cradle to grave records of the citizenry. No democratic 
country in the world has devised a system similar to Aadhaar 
which operates like an electronic leash to tether every citizen 

from cradle to grave. There can be no question of free consent in 

► 

♦ 

' situations where an individual is being coerced to part with its 


writ Petitio n ( CMI) No 747 of ZQ17 & Ora* 


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12-0 

biometric information (a) to be eligible for welfare schemes of the 
State; and/or (b) under the threat of penal consequences. In 

other words, the State cannot compel a person to part with 

* 

r 

biometrics as a condition precedent for discharge of the State’s 
constitutional and statutory obligations. In support of his 

j 

submission that there cannot be coercive measures on the part of 
the Government to part with such information and it has to be 
voluntary and based on informed consent, Mr. Divan refered to 
the following judgments: 

(i) National Legal Services Authority v. Union of India & 

' i 

Ors. m 

"75. Article 21, as already indicated, guarantees the 
protection of “personal autonomy" of an individual. 

In Anuj Gargv , Hotel Assn . of India [(2008) 3 SCC 1] 

(SCC p, 15, paras 34-35), this Court held that 
personal autonomy includes both the negative right of 
* not to be subject to interference by others and the 
positive' right of individuals to make decisions about 
their life, to express themselves and to choose which 
activities to take part in. Self-determination of gender 
is an integral part of personal autonomy and 
self-expression and falls within the realm of personal 
liberty guaranteed under Article 21 of the Constitution 
of India." 

(ii) Sunil Batra & Anr. v. Delhi Administration & Ors 

"55. And what is “life" in Article 21? In Kharak Singh 
case [AIR 1963 SC 1295 : (1964) 1 SCR 332, 357] 
Subba Rao, J. quoted Field, J. in Munn v. Illinois [94 
US' 113 (1877)] to emphasise the quality of life 
covered by Article 21: 


10 (2014) 5 SCC 438 

11 (1978) 4 SCC 494 


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"Something more than mere animal 
existence. The inhibition against its 
deprivation extends to all those limbs and 
faculties by which life te enjoyed. The 
provision equally prohibits the mutilation of 
the body by the amputation of an arm or leg, 
or the putting out of an eye or the destruction 
of any other organ-of the body through which 
the soul communicates with the outer world." 

A dynamic meaning must attach to life and liberty." 


(iii) Aruna Ramachandra Shanbaug v. Union of India 
& Ors. 12 

0 

“25. Mr T.R, Andhyarujina, learned Senior Counsel 
. whom we had appointed as amicus curiae, in his 
erudite submissions explained to us the law on the 
point. He submitted that in general in common law it is 
the right of every individual to have the control of his 
own person free from, all restraints or interferences of 
others. Every human being of adult years and sound 
mind has a right to determine what shall be done with 
his own body. In the case of medical treatment, for 
example, a surgeon who performs an operation 
without the patient’s consent commits assault or 
„ battery. It follows as a corollary that the patient 
possesses the right not to consent i.e. to refuse 
treatment. (In the United States this right is reinforced 
by a constitutional right of privacy).. This is known as 
the principle of self-determination or informed consent. 
Mr Andhyarujina submitted that the principle of 
self-determination applies when a patient of sound 
mind requires that life support should be discontinued. 
The same principle applies where a patient's consent 
has been expressed at an earlier date before he 
became unconscious or otherwise incapable of 
communicating it as by a “living will" or by giving 
written authority to doctors in anticipation of his 
incompetent situation. 

xxx xxx xxx 


12 (2011) 4 SCC 454 


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% 

93, Rehnquist, C.J. noted that in law even touching of 
one person by another without consent and without 
legal justification was a battery, and hence illegal. The 
notion of bodily integrity has been embodied in the 
requirement that informed consent is generally 
required for medical treatment. As observed by 
Cardozo,. J. while on the Court of Appeals of New 
York: ■ 


“Every human being of adult years and 
sound mind has a right to determine what 
shall be done with his own body, and a 
surgeon who performs an operation without 
his patient's consent commits an assault, for 
which he is liable in damages." ■ 


“Vid e Schloendorffv. Society of New York Hospital 
[211 NY 125 : 105 NE 92 (1914)] , NY at pp. 129-30, 
NE at p. 93. Thus the informed consent doctrine has 
become firmly entrenched in American Tort Law. The 
logical corollary of the doctrine of informed consent is 
that the patient generally possesses the right not to 
consent, that is, to refuse treatment.” 


38) He, thus, submitted that the right to life covers and extends to a 
person’s right to protect his or her body and identity from harm. 
The.right to life extends to allowing a person to preserve and 
protect his or her finger prints and iris scan. The strongest and 
most secure manner of a person protecting this facet of his or her 
bodily integrity and identity is to retain and not part with finger 
prints/iris scan. He argued that the right to life under Article 21 
permits every person to live life to the fullest and to enjoy 
freedoms guaranteed as fundamental rights, constitutional rights, 
statutory rights and common law rights. He also argued that the 


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constitutional validity of a statutory provision must be judged by 

# 

assessing the effect the impugned provision has on fundamental 
rights. The effect of the impugned provision is to coerce persons 
into parting with their finger prints and iris scan and lodging these 
personal and intimate aspects of an individual’s identity with the 
State as part of a programme that is in the petitioner’s view 
wholly illegitimate and the validity of which is pending before the 
Constitution Bench. 

39) Expressing his grave fear and misuse of personal information 

parted with by the citizenry in the form of biometrics i.e. finger 

prints and iris scan, Mr. Divan made a passionate plea that 

0 

requirement pf enrollment for Aadhaar is designed to facilitate 

and encourage private sector operators to create applications that 

depend upon the Aadhaar data base for the purposes of 

authentication/verification. This would mean that 

* 

y 

k 

non-governmental, private sector entities such as banks, 

employers, any point of payment, taxi services, airlines, colleges, 

schools, movie' theatres, clubs, service providers, travel 

1 * 

companies, etc. will ail utilise the Aadhaar data base and may 
also insist upon an Aadhaar number or Aadhaar authentication. 
This would mean that at every stage in an individual’s daily 
activity his or her preserice could be traced to a location in real 


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' t 

time. One of the purposes of Aadhaar as projected by the 
respondents is that it wiii be a single point verification for KYC 

Y 

(Know Your Customer). This is permissible and indeed 
contemplated by the iryipugned Act. Given the very poor quality 
of scrutiny of documents by private enrollers and enrollment 
agencies (without any governmental supervision) means that the 
more rigorous KYC process at present being employed by banks 
and other financial institutions will yield to a system which 
. depends on a much weaker data base. This would eventually 
imperil the integrity of the financial system and also threaten the 

9 

economic sovereignty of the nation. According to him, Aadhaar 
Act does not serve as an identity as incorrectly projected by the 
respondents but serves as a method of identification. Every 
citizen-state and citizen-service provider interaction requiring 
identification is sought to be captured and retained by the 
government at a central base and a whole ecology developed 
that would require reference to this central data base on multiple 
occasions in course of the day. He argued that this exercise of 
enrollment impermissibly creates the foundation for real time, 
continuous and pervasive identification of citizens in breach of the 
freedoms guaranteed under the Constitution. 


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40) Another submission of Mr. Divan was that object behind Section 

139AA of the Act was clearly discriminatory inasmuch as it 

creates two classes: one class of those persons who volunteer to 

enrol themselves under Aadhaar Scheme and provide the 

particulars in their income-tax returns and second category of 

those who refuse to do so. This provision by laying down 

adverse consequences for those who do not enrol becomes 

discriminatory qua that class and, therefore, is violative of Article 

# 

14 of the Constitution. Another limb of his submission was that it 

also creates an artificial class of those who object to such a 

provision of enrollment under Aadhaar. According to him, this 

would be violative of equality clause enshrined in Article 14 of the 

Constitution and in support of this submission, he relied upon the 

judgment of this Court in Nagpur Improvement Trust & Anr. v. 

Vithal Rao & Ors>. Paras 21, 22 and 26 reads as under. 

"21. The first point which was raised was: whether it is 
the State which is the acquiring authority or it is the 
Improvement Trust which is the acquiring authority, 
under the Improvement Act. it seems to us that it is 
quite clear, especially in view of Section. 17-A as 
inserted by para 6 of the Schedule, that the acquisition 
will be by the Government and it is only on payment of 
the cost of acquisition to the Government that the 
lands vest in the Trust. It is true that the acquisition is 
for the Trust and may be at its instance, but 
nevertheless the acquisition is by the Government. 

22. * If this is so,. then it is quite clear that the 


13 (1973) 1 SCC 500 

« 


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Government can acquire for a housing 
accommodation scheme either under the Land 
Acquisition Act or under the Improvement Act. If this is 
so, it enables the State Government to discriminate 
between one owner equally situated from another 
owner. 


XXX XXX XXX 

26. It is now well-settled that the State can make a 
reasonable classification for the purpose of legislation. 
It is equally well-settled that the classification in order 
to be reasonable must satisfy two tests: (/) the 
classification must be founded on intelligible differentia 
and (//) the differentia must have a rational relation 
with the object sought to be achieved by the legislation 
in question. In this connection it must be borne in mind 
that the object itself should be lawful. The object itself 
cannot be discriminatory, for otherwise, for instance, if 
the objegt is to discriminate against one section of the 
minority the discrimination cannot be justified oh the 
ground that there is a reasgnable classification 
because it has rational relation to the object sought to 
be achieved, 


41) He also relied upon the judgment in the case of Subramanian 
Swamy v. Director, Central Bureau of Investigation & Anr. \ 
Paras 58 and 59 reads as under: 

“58. The Constitution permits the State to determine, 
by the process of classification, what should be 
regarded as a class for purposes of legislation and in 
relation to law enacted on a particular subject. There is 
bound to be some degree of inequality when there is 
segregation of one class from the other. However, 
such segregation must be'rational and not artificial or 
evasive. In other words, the classification must not 
only be based on some qualities or characteristics, 
which are to be found in all persons grouped together 
and not in others who are left out but those qualities or 
characteristics must have a reasonable relation to the 
object of the legislation. Differentia which is the basis 


14 (2014) a SCC 682 


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\ll 

of classification must be’ sound and must have 
reasonable relation to the object of the legislation. If 
’ the object itself is discriminatory, then explanation that 
classification is reasonable having rational relation to 
the object sought to be achieved is immaterial. 

59 It seems to us that classification which is made in 
Section 6-A on the basis of status in government 
service is not permissible under Article 14 as it defeats 
the purpose of finding prima facie truth into the 
allegations of graft, which amount to an offence under 
the RC Act, 1988. Can there be sound differentiation 
between corrupt public servants based on their 
status? Surely not, because irrespective of their status 
or position, corrupt public servants are corrupters of 
public power. The corrupt public servants, whether 
high or low, are .birds of the same feather and must be 
confronted with! the process of investigation and 
inquiry equally. Based on the position or status in 
service, no distinction can be made between public 
servants against whom there are allegations 
amounting to an offence under the PC Act, 1988. 


42) In fine, submission,of Mr, Divan was that save and except by 
"reading down", section 139AA is unworkable. This is because 
Aadhaar by its very design and by its statute is, “voluntary and 
creates a right in favou? of a resident without imposing any duty, 

V . . 

There is no compulsion under the Aadhaar Act to enroll or obtain 
a number, if a person chooses not to enroll, at the highest, in 
terms of the Aadhaar Act; he or she may be denied access to 
certain benefits and services funded through the Consolidated 
Fund of India. When the Aadhaar enrollment procedure is 
supposedly based on informed free consent and is voluntary a 
person cannot be compelled by another law to waive free consent 


Wfit Petition (Civil) N0^2 47 o f 2Q17J LQrs i . 


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♦ • 

so as to alter the voluntary nature of enrollment that is engrafted 
in the parent statute. The right of a resident under the parent Act 
cannot be converted into a duty so long as the provisions of the 
Aadhaar Act cannot be converted into a duty so long as the 
provisions of the Aadhaar Act remain as they are. Argument was 
that Section 139AA be read down to hold that it is only voluntary 
provision by taking out the sting of mandatoriness contained 
therein and there is no compulsion on any person to give Aadhaar 

number, 


43) We may mention at this stage itself that on conclusion of his 
arguments, Mr. Divan was put a specific query that most of the 
arguments presented by him endeavoured to project aesthetics of 
law and jurisprudence which had the shades of ‘Right to Privacy' 
jurisprudence which could not be gone into by this Bench as this 
very aspect was already, referred to the Constitution Bench. Mr. 
Divan was candid in accepting this fact and his submission was 
that in these circumstances, the option for this Bench was to stay 
the operation of proviso to subjection (2) of Section 139AA of 
the Act till the decision is rendered by the Constitution Bench. 

44 ) Mr. Salman. Khurshid, learned senior counsel who appeared in 
Writ Petition (Civil) No. 247 of 2017, while adopting the 

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arguments of Mr. Datar and Mr. Divan, made an additional 
submission, invoking the principle of right to live with dignity 
which, according to him, was somewhat different from the Right 
to Privacy. He submitted that although dignity inevitably includes 
privacy, the former has several other dimensions which need to 
be explored as well. In his submissions, the test to identify 
whether certain data collected about individuals is intrusive or 
merely expansive is to consider whether it causes 
embarrassment, indignity or invasion of privacy. Thus, the 
concept of dignity is quite distinct from that of privacy. Privacy is 
a conditional concept.' One has it only to the extent that one's 
circumstances allow for it, as a matter of fact and law; While it is 
widely accepted that a situation may occur where a person may 
not have any Right to Privacy whatsoever, dignity is an inherent 
possession of every person; regardless of circumstance. In that 
sense, Dignity is an inherent dimension of equality, the basis of 
John Rawls 'Theory of Justice'. The Social Contract theory 
propounded by Rousseau remains the ground on which John 
Rawls developed the model of the Original Position in which the 
contours of the compact are conceived. Anything that reduces 
the personality of the participant, such as diluting the human 
element and substituting it with a nupnber or biometric data, 


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virtually destroys the model. Dignity is an immutable value, held 
in equal measure at all times by all people, a quality privacy does 

1 i 

♦ 

not share. No court has ever held that a person can be stripped 

entirely of hir/her dignity. The concept of dignity is deeper than 

* 

that of privacy and its boundaries do not depend upon the 
circumstance of any individual and thus the State cannot 
legitimately fully infringe upon it. He pointed out that in M. 
Nagaraj & Ors. v. Union of India <& Ors. 15 , this Court has, thus, 
elucidated the concept of Right to Dignity in the following manner: 

“20. ... This Court has in numerous cases deduced 
fundamental features which are not specifically 
mentioned in Part III on the principle that certain 
unarticulated rights are implicit in the enumerated 
guarantees. 


XXX XXX XXX 

t 

m 

26. It is the duty of the State not only to protect the 
. human dignity but to facilitate it by taking positive 
steps in that direction. No exact definition of human 
dignity exists. It refers to the intrinsic value of every 
human being, which is to be respected. It cannot be 
taken away. It cannot give ( sic be given), it simply is. 
Every human being has dignity by virtue of his 
existence. The constitutional courts in Germany, 
therefore, see human dignify as a fundamental 
principle within the system of the basic rights. This is 
how the doctrine of basic structure stands evolved 
under the German Constitution and by interpretation 
given to the concept by the constitutional courts." 


45) After explaining the aforesaid distinction between the two 
concepts, Mr. Khurshid argued that the impugned provision in the 


15 (2006) 8 SCC 212 


Writ Petition (Civil) No. 7-47 of 2QlL&-QtSi. 


Page 54 




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(S' 

Income Tax Act was violative of right to live with dignity 
guaranteed under Article 21 of the Constitution. He submitted 
that Right to Life and Liberty mentioned in Article 21 of the 
Constitution encompasses within its right to live with dignity as 
has been held in catena of cases by this Court. He explained in 
detail as to how the concept of dignity was dealt with by different 
jurists from time to time including Kant who identified dignity with 
autonomy and Dworkin who exemplified the doctrine of dignity on 
the conception of living well, which itself is based on two 
principles of dignity, namely, self respect and authenticity. In this 
sense, he submitted that living with dignity involves giving 
importance to living our life well and acting independently from 
the personal sense of character and commitment to standards 
and ideals we stand for. The mandatory requirement of Aadhaar 
card makes an unwarranted intrusion in the importance we give 
to our bodily integrity in living our life well and compels human 
beings to express themselves the way the State wants. He also 
submitted that the features relevant for upholding the dignity of a 
human being will be severely compromised with when the data 
are cross-referenced with data relating to other spheres of life 
and are disclosed to third parties through different data collected 
for varied reasons. This would take place without the knowledge 


Wfit Petition {Civil) N <?, 247 of 2Q1.7_&_Qrs+ 


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and consent of the poor assessees who are apparently required 

i 

to mandatory obtain the Aadhaar card only for the purposes of 

7 

payment of taxes. 

46) Mr. Khurshid also raised doubts and fears about the unauthorised 

disclosure of the information given by these persons who enroll 

themselves under Aadhaar and submitted that in the absence of 

proper mechanism in place to check unauthorised disclosure, the 

impugned provision of making Aadhaar card for filing tax returns 

» 

cannot be said to be consistent with the democratic ideals. Mr. 

♦ * 

Khurshid also submitted that there was no compelling state 
interests in having such a provision introducing compulsive 
element and depriving from erstwhile voluntary nature of Aadhaar 
scheme. According to him, the ‘proportionality of means concept 
is an essential one since integrating* data beyond what is really 
necessary for the stated purpose is clearly unconstitutional. He 
submitted that in light of the decision in the case of Go bind v. 

*■ f 

f 

• 

State of Madhya Pradesh™, which has been the position of this 
Court since the past forty-two years and has been cited with 
approval often, it is humbly submitted that the State has - the 
onerous burden .of justifying the impugned mandatory provision. 
The ‘compelling state interest’ justification is only one aspect of 

16 (1975) 2 SCC 148 


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\& 

the broader ‘strict scrutiny test, which was applied by this Court in 
Anuj Garg v. Hotel Association of India 17 . The other essential 
facet is to demonstrate ‘narrow tailoring’, i.e., that the State must 

* 4 

demonstrate that even if a compelling interest exists, it has 
adopted a method that will infringe in the narrowest possible 
manner upon individual rights. He submitted that neither is there 
any compelling State interest warranting such a harsh mandatory 
provision, nor has it been narrowly tailored to meet the object, if 

9 • 

any. 

47 ) In this hue, he also submitted that Section 139AA of the Act 
violates the Rule of Law. Elaborating his argument, he submitted 
that a legal system which in general observes the rule of law 
treats its people as persons, in the sense that it attempts to guide 
their' behaviour through affecting the circumstances of their 
action. It, thus,'presupposes that they are rational autonomous 
creatures and attempts to affect their actions and habits by 
affecting their deliberations. It satisfies men's craving for 
reasonable certainty of form as well as substance, and for dignity 
of process as well as dignity of result. On the other hand, when 
the rule of law is violated, it may be either in the form of leading to 
uncertainty or it may lead to frustrated and disappointed 

17 (2008) 3 SCC 1 


Writ Petiti on (Civil) No ?47 of ZQ17 & PrA. 


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expectations. It leads to the first when the law does not enable 
people to foresee future developments or to form definite 
expectations. It leads to frustrated expectations when the 
appearance of stability and certainty which encourages people to 
rely and plan on the basis of the existing law is shattered by 
retroactive law-making or by preventing proper law-enforcement, 
etc. The-evils of frustrated expectations are greater. Quite apart 
from the concrete harm they cause they also offend dignity in 
expressing disrespect for people’s autonomy. The law in such 
cases encourages autonomous action only in order to frustrate its 
purpose. When such frustration is the result of human action or 
the result of the activities of social institutions then it expresses 
disrespect. Often it is analogous to entrapment, one is 
encouraged innocently to. rely on the law and then that assurance 
is withdrawn and one's very reliance is turned into a cause of 
harm to one. Just as in the instant case, the impugned provision 
came into force when the order of the Court that Aadhaar card is 
not mandatory, still continues to operate, 

p 

48) in the alternative, another submission of Mr. Khurshid was that 

Section 139AA was retrospective in nature as per proviso to 

* 

sub-section (2) thereof. As per the said proviso, on failure to give 


1 fi/rff Pe tition (Civil) No , 247 of 2017 & Ors, . 


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US 

Aadhaar number, the consequence was not only to render the 

♦ 

PAN Card invalid prospectively but from the' initial date of 

issuance of PAN Card iri view of the expression, ‘as if the person 

had not applied for Permanent Account Number’ which would 

meant that PAN Card would be invalidated by rendering the same 

void ab initio i.e. from retrospective effect. Such a retrospective 

effect, according to him, was violative of Article 20(1) of the 

Constitution. Further, retrospective operation is not permissible 

without separate objects for such operations as held in Dayawati 

v. fnderjit In conclusion, learned senior counsel submitted that 

the law regarding mandatory requirement of Aadhaar card is a 
♦ 

hasty piece of legislation without much thought going into it. It is 

submitted that the Aadhaar card cannot be made mandatory for 

filing tax returns with such far-reaching consequences for 

non-compliance, unless and until suitable measures are put in 

place to ensure that the dignity of the assessees is not 

compromised with. The generalisation, centralisation and 

disclosure of biometric information, however, accidental it might 

* 

• be, has to be effectively controlled and mechanisms have to be 

put in place to inquire, and penalise those found guilty of 

* 

disclosing such information. The need to do so is extremely 

18 (1966) 3 SCR 275 


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l 

crucial in view of the fact that biofnetric systems may be 
bypassed, hacked, or even fail. Unless the same is done, the 

» T 

identity of the. citizens will be reduced to a collection of 

instrumentalised markers. ’ Further, the organisations and 

authorities allowed to conduct it should be strictly defined. There 

has to be a strict control over any systematic use of common 

identifiers. No such re-grouping of data can be allowed as could 

lead to the use of biometrics for exclusion of vulnerable groups. 

* 

Brown considers surveillance as both a discursive and a material 
i practice that reifies bodies around divisive lines. Surveillance of 
certain communities h<is been both social as well as political 
norm. He further submitted that this Court cannot lose sight of 
the fact that the data collected under the impugned provision may 
be used to carry out discriminatory research and sort subjects 
into groups for specific reasons. The fact that the impugned 
provision creates an apprehension in the minds of the people, 

legitimate and reasonable enough with no preventive mechanism 

♦ 

in place, is in itself a violation of the right to life and personal 
liberty as enshrined under the Constitution. 

49) Mr. Anand’o Mukherjee, learned counsel, appeared in Writ Petition 
(Civil) No. 304 of 2017, while reiterating the submissions of earlier 


Writ Petition' (Civil) No, 24 7 of%Q17 & Qrs* . 


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[hi 

counsel, argued that Section 139AA was confused, 
self-destructive and self-defeating provision for the reason that on 

T ' 

the one hand, it had an effect of making enrollment into Aadhaar 

mandatory, but, on the other hand, by virtue of the explanation 

contained in the provision itself, it is kept voluntary and as a 

matter of right for the same set of individuals and for the purposes 

of Section 139AA. He also submitted that there was a conflict 

between Section 139AA of the Act and Section 29 of Aadhaar Act 

inasmuch as Section 29 puts a blanket embargo on using the 

core biometric information, collected or created under the 

Aadhaar Act for any purpose other than generation of Aadhaar 

numbers and authentication under the Aadhaar Act. Mr. 

Mukherjee went to the extent of describing the impugned 

provisipn as colourable exercise of power primarily on the ground 

that when Aadhaar Act is voluntary irt nature, there was no 

question of making this very provision mandatory by virtue of 

Section 139AA of the Act*. 

* 

* * 

50) Appearing for Union of India, Mr. Muku! Rohatgi, learned Attorney 
General for India, put stiff resistance to the submissions 
advanced on behalf of the petitioners. In a bid to torpedo and 
pulverise the arguments as set forth on the side of the petitioners, 


Writ Petition (Civil) No. 2 47 of 2017 & 0[_&± 


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•i 


the learned Attorney pyramid his arguments in the following style: 

In the first, Mr. Rohatgi made few preliminary remarks.. First 

such submission was that many contentions advanced by the 

counsel for the petitioners touch upon the question of Right to 

Privacy which had already been referred to the Constitution 

Bench and, therefore, those aspects were not required to be dealt 

with, in this behalf, he specifically referred to the following 

* 

observations of this Court in its order dated August 11, 2015, 
which were made by the three Judge Bench in Writ Petition (Civil) 


No. 494 of 2012: 

“At the same time, we are also of the opinion thatihe 
institutional integrity and judicial discipline re quire that 
pronouncement made bv larger Benches of this Court 
cannot be ignored bv the smaller Benches without 
appropriately .explaining the reasons for not following 
the pronouncements made by such larger .Benches, 

With due respect to all -the learned Judges who 
- rendered the subsequent judgments - where right to 
privacy is asserted or referred to their Lordships 
concern for the liberty of human beings, we are of the 
humble 'opinion that there appears to be certain 
amount of apparent unresolved contradiction in the 
law declared by this Court.” 

Notwithstanding these preliminary remarks, he rebutted the 
said argument based on Article 21, including Right to Privacy, by 
raising a plea that Right to Privacy/Personal Autonomy/Bodily 
Integrity is not absolute. He referred to the judgment of the 

4 

United States Supreme Court in Roe v. Wade 9 wherein it was 


19 410 U.S. 113 (1973) 


Writ Petition (Civil) No. 247 of 2017 & Ors, 


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held: 




"The privacy right involved, therefore, cannot be said 
to be absolute. In fact, it is not clear,to us that the 
claim asserted by some amici that o.ne has an 
unlimited right ’to do with one’s body as one pleases 
bears a close relationship to the right of privacy 
previously articulated in the Court’s decisions. The 
Court has refused to recognise an unlimited right of 
this kind in the past.” 


He also relied upon the judgment of this Court in Sharda v. 
Dharmpal 20 where the Court held that a matrimonial court has the 
power to order a person to undergo medical test. Passing of 
such an order by the court would not be in violation of the right to 
personal liberty under Article 21 of the Indian Constitution. 


51) His second preliminary submission was.that insofar as challenge 
to the validity of Section 139AA on other grounds is concerned, it 
is to be kept in mind that the constitutional validity of a statute 
could* be challenged only gn two grounds, i.e. the Legislature 
enacting the law was not competent to enact that particular law or 
such a law is violative of any of the provisions of the Constitution. 
In support, he referred to the various judgments of this Court. 

52) He, thus, submitted that no third ground was available to any of 
the petitioners to challenge the constitutional validity of a 
legislative enactment. According to him, the principle 

' " ' ‘ " 1 " "* ' ' r 

20 (2003) 4 SCC 493 < 


Writ Petition (Civil) No. 247 of 20.17. .&.QLS, 


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Vf'vO 

proportionality should not be read into Article 14 of the 

Constitution, while taking support from the judgment in K.T. 

* 

Plantation Private Limited & Anr. v. State of Karnataka 1 ', 

wherein it is held that plea of unreasonableness, arbitrariness, 

« 

proportionality, etc. always raises an element of subjectivity on 
which a court cannot strike down a statute or a statutory 

provision. 


53 } Third introductory submission of the learned Attorney General 

was that the scope of judicial review in a fiscal statute was very 

limited and Section 139AA of the Act, being a part of fiscal 

statute, following parameters laid down in State of Madhya 

Pradesh v. Rakesh Kohli & Anr.” had to be kept in mind; 

“32. While dealing with constitutional validity of a 
taxation law enacted by Parliament or State 
* Legislature, the court must have regard to the 
following principles; 

(i) there is always presumption in favour of 
constitutionality of a law made by Parliament or a 
State Legislature, 

(ii) no enactment can be struck down by just saying 
that it is arbitrary or unreasonable or irrational but 
some constitutional infirmity has to be found, 

' (iii) the court is not concerned with the wisdom or 
unwisdom, the justice or injustice of the law as 
Parliament and State Legislatures are supposed to be 
alive to the needs of the people whom they represent 
and they are the best judge of the community by 


21 (2011) 4 SCC 414 

22 (2012) 6 SCC 312 

, Page 64 

Writ Petition (Civil) No, 2 47 of 2Q1 L&lO£&. 




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whose suffrage they come into existence, 

(iv) hardship is not relevant in pronouncing on the 
* constitutional validity of a fiscal statute or economic 

law, and 

(v) in the field of taxation, th’e legislature enjoys 
greater latitude for classification...”. 


54 ) In this hue, he also argued that the State enjoys the widest 
latitude where measure of economic regulations are concerned 
{See - Secretary to Government of Madras & Anr. v. P.R. 
Sriramulu & Anr. 2 \ paragraph 15) and that mala fides cannot be 

4 

attributed to the Parliament, as held in G.C. Kanungo v. State of 
Orissa 2 \ (paragraph 11). Also, the courts approached the issue 

i 

with the presumption of constitutionality in mind and that 
Legislature intends and correctly appreciates the need of its own 
people, as held in Mohd. Hanif Quareshi & Ors. v. State of 

•r 

Bihar 5 (paragraph 15). 

55 ) On merits, the argument, of Mr. Rohatgi was that once the 

aforesaid basic parameters are kept in mind, the impugned 

* 

provision passes the muster of constitutionality. Adverting to the 
issue of legislative competence, he referred to Article 246 and 
248 of the Constitution as well as Entry 82 and Entry 97 of List-1 
of Scheduie-Vt! of the Constitution which empowers the 

23 (1996) 1 SCC 345 

24 (1995) 5 SCC 96 

25 AIR 1958 SC 731 

i 

Writ'Petition (Civil) No. 247 of 201 7 & Ors, 


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Parliament to legislate on the subject pertaining to income-tax. 

Therefore, it could not bfe said that the impugned provision made 

7 

was beyond the competence of the Parliament. He also 

submitted that in any case residuary power lies with- the 

Parliament and this power to legislate is plenary, as held In 

Synthetics end Chemicals Ltd. & Ors. v. State ofU.P. & Ors. 26 

"56. On behalf of the State both Mr. Trivedi and Mr. 
Yogeshwar Prasad contended that regulatory power of 
the State was there and in order to regulate it was 
possible to impose certain disincentives in the form of 
fees or levies. Imposition of these imposts as part of 
regulatory process is permissible, it was submitted. 

Our attention was drawn to the various decisions 
where by virtue of "police power" in respect of alcohol 
the State has imposed such impositions. Though one 
would not be justified in adverting to any police power, 
it is possible to conceive sovereign power and on that 
sovereign power to have the power of regulation to 
impose such conditions so as to ensure that the 
regulations are obeyed and complied with. We would 
not like, however, to embark upon any theory of police 
power because the Indian Constitution does not 
recognise police power as such. But we must 
recognise the exercise of sovereign power which gives 
the States sufficient authority to enact any law subject 
to the limitations of the Constitution to discharge its 
functions. Hence, the Indian Constitution as a 
sovereign State has power to legislate on all branches 
except to the limitation as to the division of powers 
between the Centre and the States and also subject to 
the fundamental rights guaranteed under the 
Constitution. The Indian State, between the Centre 
and the States, has sovereign power. The sovereign 
power is plenary and inherent in every sovereign State 
to do all things which promote the health, peace, 
morals, education and good order of the people. 
Sovereignty is difficult to define. This power of 
sovereignty is, however, subject to constitutional 
limitations. This power, according to some 


26 (1990) 1 SCC 109 


Writ Pet ition (Civi l) Nq, 2*7 Qf ZQlLACrs. 


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* » 

constitutional authorities, is to the public what 
necessity is to the individual. Right to tax or levy 
imposts must be in accordance with the provisions of 
the Constitution.” 

6 ) Rebutting the argument of Mr. Datar that by making the impugned 

provision mandatory the Legislature had acted contrary to the 

* 

judgments of this Court, Mr. Rohatgi argued that this argument 

4 

was devoid of any merit on various counts: First, there was no 

judgment of this Court and the orders referred were only interim 

orders. Secondly, in any case, those orders were passed at a 
« ■ 

time when Aadhaar was being implemented as a scheme in 
administrative/executive domain and the Court was considering 
the validity of Aadhaar scheme in that hue/background. Those 
orders have not been passed in the context of examining the 
validity of any legislative measure. Thirdly, no final view is taken 
in the form of any judgment that Aadhaar is unconstitutional and, 

therefore, there is no basis in existence which was required to be 

* 

* 

removed. Fourthly, the Parliament was competent to pass the 

Jaw and provide statutory framework to give legislative backing to 

Aadhaar in the absence of any such law which existed at that 

time. He, thus, submitted that there was no question of curing the 

alleged basis of judgment/interim orders by legislation. He 

specifically relied upon the following passage from the judgment 

* 

. % 

Writ Petition (Civ il) Nn, 247 of 2017 & Ors. 


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IHM 

in the case of Goa Foundation & Anr. v. State of Goa & Anrs 7 : 

"24. The principles on which first question would 
require to be answered are not in doubt. Jhe power to 
invalidate a .legislative or executive act lies with the 
Court*. A judicial pronouncement, either declaratory or 
conferring rights on the citizens cannot be set at 
naught by a subsequent legislative act for that would 
amount to an encroachment on the judicial powers. 
However, the legislature would be competent to pass 
an amending or a validating act, if deemed fit, with 
retrospective effect removing the basis of the decision 
of the Court. Even in such a situation the courts may 
not approve a retrospective deprivation of accrued 
rights arising from a judgment by means of a 
subsequent legislation (Madan Mohan 
Pathak v. Union of India), However, where the Court’s 
judgment is purely declaratory, the courts will lean in 
support of the legislative power to remove the basis of 
a court judgment even retrospectively, paving the way 
for a restoration of the status quo ante. Though the 
consequence may appear to be an exercise to 
overcome the judicial pronouncement it is so only at 
first blush; a closer scrutiny would confer legitimacy on 
such an exercise as the same is a normal adjunct of 
the legislative power. The whole exercise is one of 
viewing the different spheres of jurisdiction exercised 
by the two bodies i.e. the judiciary and the legislature. 

* . The balancing act, delicate as it is, to the constitutional 
scheme is guided by the well-defined values which 
have found succinct manifestation in the views of this 
Court in Bakhtawar Trust." 


57 } Mr. Rohatgi thereafter read extensively from the counter affidavit 

filed on behalf of the Union of India detailing the rational and 

♦ 

objective behind introduction of Section 139AA of the Act. He 
submitted that the provision aims to achieve, inter alia , the 

following objectives: 

(i) This provision was introduced to tackle the problem of 

27 (2016) 6 SCC 602 


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|H5 

multiple PAN cards to s?me individuals and PAN cards in 
the name of fictitious individuals are common medium of 

7 

money laundering, tax evasion, creation and channelling of 

black money. PAN numbers in name of firm or fictitious 

< 

persons as directors or shareholders are used to create 

* 

layers of shell companies through which the aforesaid 

activities are done. A de-duplication exercise was done in 

the year 2006 and a large number of PAN numbers were 

found to be duplicate. The problem of some persons 

fraudulently obtaining multiple PANs and using them for 

making illegal transactions still exists. Over all 11.35 lakh 

cases of duplicate PAN/frauduient PAN have been detected 

and accordingly suph PANs have been deleted/deactivated. 

Out of this, around 10.52 lakh cases pertain to individual 
«* 

assessees. Total number of Aadhaar for individuals 
exceeds 113 crores whereas total number of PAN for 
individuals is around 29 crore. Therefore, whereas the 
Aadhaar Act applies to the entire population, the Income 
Tax Act applies 'to a much smaller sub-set of the population, 

i 

¥ 

i.e. the tax payers. In order to ensure One Pan to One 
Person, Aadhaar can be the sole criterion for allotment of 

PAN to individuals only after all existing PAN are seeded 

* 

Writ Petition (Civil) No. 247 of 2017 & Qr$, 


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with Aadhaar and-quoting of Aadhaar is mandated for new 

i 

PAN applications. 

Counter affidavit filed by the Union of India also gives 


the following instances of misuse of PAN: 

I * 

(a) In NSDL scame of 2006, about one lakh bogus bank 
and demat accounts were opened through use of 
PANs. The real PAN owners were not aware of these 
accounts. 

(b) As Banks progressively started insisting on PANs for 
opening of bank accounts, unscrupulous operators 
managed multiple PANs for providing entries and 
operating undisclosed accounts for making financial 

transactions. 

(c) Entry operators manage a large number of shell 
companies using duplicate PANs or PANs issued in 
the name of dummy directors and name lenders. As 
the persons involved as bogus directors are usually 
the same set of persons, linkage with Aadhaar would 
prevent such misuse. Further, it will also be expedient 
for the Enforcement agencies to identify and red flag 

■ 

* 

such misuses in future. 

(d) Cases have also been found where multiple PANs are 


* Page 70 

Writ Petitio n (£i)dlX No • 747 nf2017 & 




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\v*l 

acquired by a single entity by dubious means and 
used for raising loans from different banks. In one 
• such case at Ludhiana, multiple PANs were found 
acquired by a person in his individual name as well as 
in the name of his firms by dubious means. During 

l 

investigation, he admitted to have acquired multiple 

PANs for raising multiple loans from banks and to 

avoid adverse CIBIL information. Prosecution has 

been launched by the Income Tax Department in this 
* 
r 

case u/s 277/V 278, 278B of the Act in addition 


(ii) 


To tackle the problem of black money, Mr. Rohatgi pointed 
out that the Second Report of the Special Investigation 
Team (SIT) on black money, headed by Justice M.B. Shah 
(Retd.), after observing the menace of corruption and black 


noney, recommended as follows: 

“At present, fir entering into financial/business 
transactions, persons have optiontoquotetheirPAN 
or UID or passport number or driving license or any 
proof of identity. However. Me. . ™ 

mechanism/system at present to connect ‘he data 
available with each .of these independent proofs of ID. 
It is suggested that these databases be 
Interconnected. This would assist in identifying 
multiple transactions by one person with different IDs. 


The SIT in its Third Report has recommended the 


Wfif Petition (Civil) N.0, 247 of 2QJZAOJ ^ 


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WCb 

establishment of a Central KYC Registry. The rational for 
the SIT recommendations was to prove a verifiable and 

7 

authenticate identity for all individuals and Aadhaar 
provides a mechanism to serve that purpose in a federated 
architecture without aggregating al! the information at one 

place. 

The Committee headed by the Chairman, CBDT on 

;Measures to tackle black money in India and abroad' 

1 

reveals that various authorities are dealing with the menace 
of money laundering being done to evade taxes under the 
garb of shell companies by the persons who hold multiple 
bogus PAN numbers under different names or variations of 
their names, providing accommodation entries to various 
companies and persons to evade taxes and introduce 
undisclosed and unaccounted income of those persons into 
their companies as share applications or loans and 
advances or booking fake expenses. These are tax frauds 
and devices which are causing loss to the revenue to the 

tune of thousands of crores. 

(iii) Another objective is to curb the menace of shell companies. 
It is submitted in this regard that PAN is a basis of all the 
requirements in the process of incorporation of a company. 

Writ Petition (Civil) N o, 24 7 of 2QH & Ors fc 



Page 12 




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\M9 

Even an artificial juridical person like a company is granted 
PAN, It is required as an ID proof for incorporation of a 
company, applying for DIN,' digital signature etc. PAN is 
also required for opening a bank account in the name of a 
company or individuals. Bas’rc documents required for 

i 

* 

obtaining a PAN are ID proof and address proof. It has 
been observed that these documents which are a basis of 
issuance of PAN could easily be forged and, therefore, PAN 
cards issued on the basis of such forged documents cannot 
be genuine and it can be used for various financial 
frauds/crime. Aadhaar will ensure that there is no 
duplication of identity as biometric will not allow that. If at 
the time of opening of bank accounts itself, the more robust 
identity proof like Aadhaar had been used in place of PAN, 
the menace of mushrooming of 

non-descript/shell/janriakharchi/bogus companies would 
have been prevented. There is involvement of natural 
person in the complex web of shell companies only at the 
initial stage when the shareholders subscribe to the share 
capital of the shell company. After that may layers are 
created because there is company to company transaction 
and much more complex structure of shell company 


Writ Petition (Civil) No. 247 of 2017 & Or 


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l $6 

compromising the financial integration of nation is formed 
which makes it almost impossible to identify the real 

f 

beneficiary (natural person) involved in these shell 
companies. These shell companies have been used for 
purpose of money laundering at a large scale. The fake 
PAN cards have facilitated the enormous growth of shell 
companies which were being used for layering of funds and 
illegal ■ transfer of such funds to some other 
companies/persons or parked abroad in the guise of 
remittances against import. The share capital of these shell 
companies are subscribed by fakp shareholders through 
numerous bank accounts opened with the use of fake PAN 
cards at the initial stage. 

(iv) According , to the respondents, this provision will help in 

widening of tax base. It was pointed out that more than 113 

crore people have registered themselves under Aadhaar. 

Adults coverage of Aadhaar is more than 99%. Aadhaar 

being a unique identification, the problem of bogus or 

duplicate PANs can be dealt with in a more systematic and 

* 

foolproof manner. 

According to;the respondent, in fact, it has already 
shown results as Aadhaar has led to weeding out duplicate 


Writ Petition (Civil) No , ?47 of 2Q17 & Ors^ 


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1<S\ 

and fakes in many welfare programmes such as PDS, 
MNREGS, LPG Pahal, Old Age pension, scholarships etc. 

7 

during the last two years and it has led to savings of 

f * 

approximately Rs.49,000 crores to the exchequer. 

Mr. Rohatgi also referred to that portions of the counter affidavit 
which narrates the following benefits Aadhaar seeding in PAN 
database: 

(a) Permanent Account Number (PAN1 - PAN is a ten-digit 

• t 

alpha-numeric number allotted by the Income Tax 

* * 

Department to any ‘person’ who applies for it or to whom 
the department allots the number without an application. 
One PAN for one person Is the guiding principle for 
allotment of PAN. PAN acts as the identifier of taxable 
entity and aggregator of all financial transactions 

undertaken by the taxable entity i.e. ‘person’. 

(b) I prm^inn* relating to PAN - PAN is the key or 
identifier of all computerized records relating to the 
taxpayer. The requirement for obtaining of PAN is 
mandated through Section 139A of the Act. The procedure 

* 

for application for PAN is prescribed in Rule 114 of the 
Rules. The forms prescribed for PAN application are 49A 


(Civil) No. 247 ofl QIl&JkS. 


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and 49AAfor Indian and Foreign Citizens/Entities. Quoting 
• of PAN has been mandated for certain transactions above 

i 

7 

specified threshold value in Rule 114B of the Rules. 

(c) Uniqueness of PAN - For achieving the objective of one 
PAN to one assessee, it is required to maintain uniqueness 
of PAN. The uniqueness of PAN is achieved by conducting 
a de-duplication check on all already existing allotted PAN 
against the data furnished by new applicant. Under the 
existing system of PAN only demographic data is captured. 
De-duplication process is carried out using a Phonetic 
Algorithm.whereby a Phonetic PAN (PPAN) is created in 
respect of each applicant using the data of applicant’s 
name, father’s name, date of birth, gender and status. By 
comparison of newly generated PPAN with existing set of 
PPANs of all assessees duplicate check is carried out and it 

is ensured that same person does not acquire multiple 

« 

PANs or one PAN is not allotted to multiple persons. Due to 
prevalence of common names and large number of PAN 
holders, the demographic way of de-duplication is not 
foolproof. Many instances are found where multiple PANs 
have been allotted to one person or one PAN has been 
allotted to multiple persons despite the application of 


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»53 

above-mentioned de-duplication process. While allotment 
of multiple PAN to one person has the risk of diversion of 
income of person into several PANs resulting in evasion of 
tax, the allotment of same PAN to multiple persons results 
in wrong aggregation and assessment of incomes of 
several persons ‘as one taxable entity represented by single 

PAN. 

(d) Presently verification of original documents in only 0.2% 
cases (200 out of 1,00,000 PAN applications) is done on a 
random basis which is quite less. In the case of Aadhaar, 
100% verification is possible due to availability of on-line 
Aadhaar authentication service provided by the UIDAI. 
Aadhaar seeding in PAN database will make PAN allotment 

process more robust. 

(e) Seeding of Aadhaar number into PAN database will allow a 
robust way of de-duplication as Aadhaar number is 
de-duplicated using biometric attributes of fingerprints and 
iris images. The instance of a duplicate Aadhaar is almost 
non-existent. Further seeking of Aadhaar will allow the 
income Tax Department to weed out any undetected 
duplicate PANs. It will also facilitate resolution of cases of 

one PAN allotted to multiple persons. 

# 

’ ' Page 77 

Wrjj P°tit ir, n (Civil) No. 247 of 2Q1 7 & Qra * 




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59) After stating the aforesaid purpose, rational and benefits, the 
learned Attorney General submitted that the main provision is not 
violative of any constitutional rights of the petitioners. According 
to him, the provision was not discriminatory at all inasmuch as it 

w 

was passed on reasonable classification, the two classes being 

tax payers and non tax .payers. He also submitted that it was 

totally misconceived that this provision had no rational nexus with 
• * 

the objective sought to be achieved in view of the various 
objectives and benefits which were sought to be achieved by 
seeding Aadhaar with PAN. Mr. Rohatgi also referred to various 
orders and judgments of this Court whereunder use of Aadhaar 
was endorsed, encouraged or even directed. Following instances 

are cited: 

; / 

mr 

60) The importance and utility of Aadhaar- for delivery of public 
services like PDS, curbing bogus admissions in schools and 
verification of mobile number subscribers has not only been 
upheld but endorsed and recommended by this Court. 

61) This Court in the case of PUCL v. Union of India” has approved 

the recommendations of the High Powered Committee headed by 

■ * 

Justice D.P. Wadhwa, which recommended linking of Aadhaar 


28 (2011) 14 SCC 331 

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with PDS and encouraged State Governments to adopt the same. 


62) This Court in State of Kerala & others vs. president, Parents 

♦ ' > 

Teachers Association• SNVUP and Others- has directed use of 

, 1 

Aadhaar for checking bogus admissions in schools with the 


following observations: 

“.18. We are, however, inclined to give a direction to 
the Education Department, State of Kerala to forthwith 
give effect to a circular dated 12.10.2011 to issue UID 
Card to - all the school children and follow the 
guidelines and directions contained in their circular. 
Needless to say, the Government can always adopt, in 
future, better scientific methods to curb such types of 
bogus admissions in various aided schools. 


63) While monitoring the PILs relating to night shelters for the 
homeless and the right to food through the public distribution 
system, this Court has lauded and complimented the efforts of the 
State Governments for inter alia' carrying out bio-metric 
identification of the head of family of each household to eliminate 
fictitious, bogus and ineligible BPL/AAY household cards. 

64) A two Judge Bench of this court in People’s Union for Civil 
Liberties (PDS Matter) v. Union of India & Ors. 1 " has held that 
computerisation is going to help the public distribution system in 
the country in a big way and encouraged and endorsed the 


29 (2013) 2 SCC 705 

30 (2013) 14 SCC 368 


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156 

digitisation of database including bio-metric identification of the 

beneficiaries. In fact, this Court had requested Mr. Nandan 

Nilekani to suggest ways in which the computerisation process of 
" * 

PDS can be expedited. 

• * 

65) in the* case of People’s Union for Civil Liberties v. Union of 
India & Ors.’\ this Court has also endorsed bio-metric 
identification of homeless persons so that the benefits like supply 
of food and kerosene oil available to persons who are below 
poverty line can be extended to the correct beneficiaries. 

4 

66} In the case of Lokniti Foundation v. Union of India & Ors. 32 , this 
Court has disposed of ; the writ petition while approving the 
Aadhaar based verification of existing and new mobile number 
subscribers and upon being satisfied that an effective process 
has been evolved to ensure identity verification. 

67) Mr. Sengupta, learned counsel arguing on behalf of UIDAI, made 
additional submissions specifically answering the doctrine of 
proportionality argument:advanced by Mr. Qatar as well as on the 
aspect of informational self-determination. His submissions in 
this behalf were that proportionality should not be read into Article 
14 of the Constitution and in any case no proportionality or other 

31 (2010) 5 SCC 318 . 

32 Writ Petition (C) No. 607 of 2016 decided on February 06, 2017 


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\ 

Article 14 violation had been made out in the instant case. He 
also argued that there is no absolute right to informational 

T 

self-determination; to the extent such right may-exist it is part of 
the Right to Privacy whose very existence contours is before the 
Constitution Bench of this.Court. 

68) Adverting to the doctrine of proportionality, he referred to the 
judgments of this Court in Modern Dentel College end 
Research Centre 33 wherein this doctrine is explained and applied 
and submitted that the doctrine is applied only in the context of 
Article 19(1 )(g) and not Article 14 of the Constitution. He pointed 

■ i 

out that proportionality is not the governing law even.in the United 

Kingdom for claims analogous to Article 14 of the Constitution. 

His passionate submission was that proportionality supplanting 

traditional review in European Court of Human Rights cases and 

not remaining applicable in traditional judicial review claims has 

caused immense confusion in British pubic law. Narrating the 

structure of Article 19, submission of Mr. Sengupta was that 

freedoms which were enlisted under Article 19(1) were not the 

absolute freedoms and they were subject to reasonable 

restrictions, as provided under sub-article (2) to (6) of Article 19 

itself. It is because of this reason, while examining as to whether 
* 

33 Footnote 7 above 


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15 ? 

a particular measure violated any of the freedoms or was a 

reasonable restriction, balancing exercise was to be done by the 

courts and this balancing exercise brings the element of 

proportionality. However, this was not envisaged in Article 14 at 
» 

all. 

j 

69) Coming to the impugned provision and referring to the penal 
consequences provided in proviso to Section 139AA(2), he 
argued that the test of whether penalty is proportionate is not the 

4 

same as the doctrine of proportionality. Proportionate penalty is 

an incident of arbitrariness whereas there cannot be any 

arbitrariness qus a statute. He also submitted that on facts 

penalty provided in the impugned provision is deemed to be the 

same as that for not filing income tax return with valid PAN. He 
* 

also argued that there was no violation of Article 1'4 inasmuch as 

classification had a reasonable nexus with the object enshrined in 

the impugned provision. It was open to the Legislature to 

determine decrease of harm and act accordingly and the 

Legislature does not have to tackle problem 100% for it to have a 

* 

rational nexus. Since individual assessees are prone to the 
problem and financial frauds using fake PAN, whether individually 
or in the guise of legal persons, Aadhaar aims at tackling problem 


Writ Petition (Civil) No. 24 7 of 2017 & QjSx 


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■ 153 

Which exhibited a rational nexus with the object. According to Mr. 
Sengupta, there was no discriminatory object inasmuch as the 
object is to weed out duplicate PANs that allow financial and tax 
fraud. Therefore, the provision is not discriminatory in nature. 

70) Dealing with the argument of right to informational 
self-determination, the learned counsel submitted that as a matter 
of current practice in India, no absolute right to determine what 
information about oneself one wants to disclose; several pieces of 
personal information are required by law. The perils of 
comparative law in merely transplanting from German law; the 
need to develop an Indian understanding of privacy and 
self-determination in the Indian context. Even in German law, the 
judgment quoted by the petitioner does not demonstrate an 
untrammelled Right to Privacy or information self-determination. 
The world over, information over oneself is the most critical 

element of privacy; the contours of which are to be determined by 
a Constitution Bench. 

A Caveat . 

71) Before we enter into the discussion and weigh the merits of 
arguments addressed on both sides, one aspect needs to be 
made absolutely clear, though it has been hinted earlier as well. 


Writ Petition (Civil ) N o. 247 of ?m7 & Or.f 


Page 83 


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l bO 

Conscious of the fact that challenge to Aadhaar 
* 

scheme/legislation on the ground that it was violative of Article 21 
of the Constitution is pending before the Constitution Bench and, 
therefore, this Bench could not have decided that issue, counsel 
for the petitioners had submitted that they would not be pressing 

r 

the issue of Right to Privacy. • Notwithstanding the same, it was 
argued by Mr. Divan, though in the process Mr. Divan 
emphasised that he was touching upon, other facets of Article 21, 
Likewise, Mr. Salman Khurshid while arguing that the impugned 
provision was violative of Article 21, based his submission on 

Right-to Human Dignity as a facet of Article 21. He also 

\ 

emphasised that the concept of human dignity was different from 

* v 

Right to Privacy. We have taken note of these arguments above. 
However, we feel all these aspects argued by the petitioners 
overlap with privacy issues as different aspects of Article 21 of the 

Constitution, Right to Let Alone has the shades of Right to 

✓ 

Privacy and it is so held by the Court in R. Rajagopal & Anr. v. 

State of Tamil Nadu & Ors. 2A : 

“26. We may now summarise the broad principles 
flowing from the above discussion; 

(1) The right to privacy is implicit in the right to life and 
liberty guaranteed to the citizens of this country by 
Article 21. It is a “right to be let alone”. A citizen has a 
right to safeguard the privacy of his own, his family, 


34 (1994) 6 SCC 632 

* I 

9 

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\b\ 

marriage;- procreation, motherhood, child-bearing and 
education among other matters. None can publish 
anything concerning the above matters without his 
consent — whether truthful or otherwise and whether 
laudatory or critical. If he does so, He would be 
violating the right to privacy of the person concerned 
and would be liable in an action for damages. Position 
may, however, be different, if a person voluntarily 
thrusts himsejf into controversy or voluntarily invites or 
raises’a controversy. 

i 

(2) The rule aforesaid is subject to the exception, that 
any publication concerning i the aforesaid aspects 
becomes unobjectionable if such publication is based 
upon public records including court records. This is for 
the reason that once a matter becomes a matter of 
public record, the right to privacy no longer subsists 
and it becomes a legitimate subject for comment by 
press and media among others. We are, however, of 
the opinion that in the interests of decency [Article 
19(2)] an exception must be carved out to this rule, 
viz., a female who is the victim of a sexual assault, 
kidnap, abduction or a like offence should not further 
be subjected to- the indignity of her name and the 
incident being publicised in press/media. 

*(3) There is yet another exception to the^rule in (1) 
above — indeed, this is not an exception but an 
independent rule. In the case of public officials, it is 
obvious, right to privacy, or for that matter, the remedy 
of action for damages is simply not available with 
respect to their acts and conduct relevant to the 
discharge of their official duties. This is so even where 
the publication is based upon facts and statements 
which are not true, unless the official establishes that 
the publication was made (by the defendant) with 
reckless disregard for truth. In such a case, it would be 
enough for the defendant (member of the press or 
media) to prove that he acted after a reasonable 
verification of the facts; it is not necessary for him to 
prove that what he has written is true. Of course, 
where the publication is proved to be 
false and actuated by' malice or personal animosity, 
the defendant would have no defence and would be 
liable for damages. It is equally obvious that in matters 
not relevant to the discharge of his duties, the public 
official enjoys the same protection as any other citizen, 


Writ Petition (Civil) No, 247 of ZQ17 & Or?. 


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16 * 

as explained in (1) and (2) above. It needs no 
reiteration that judiciary, which is protected by the 
power to punish .for contempt of court and Parliament 
and legislatures; protected as their privileges are by 
Articles 105 and 104 respectively of the Constitution of 
India, represent exceptions to this rule. 

(4) So far as the Government, local authority and 
other organs and institutions exercising governmental 
power are concerned, they cannot maintain ,a suit for 
damages for defaming them. 

(5) Rules 3 and 4 do not, however, mean that Official 
Secrets Act, 1923, or any similar enactment or 
provision having the force of law does not bind the 
press or media. 

(6) There is no law empowering the State or its. 
officials to prohibit, or to impose a prior restraint upon 
the press/media." 


So is the Right to Informational Seif Determination, as 

specifically spelled out by US Supreme Court in United States 

* 

Department jof Justice v. Reporters Committee for Freedom 

of the-Press*\ Because of the aforesaid reasons and keeping in 

mind the principle of judicial discipline, we have made conscious 

choice not to deal with these aspects and it would be for the 

parties to raise these issues before the Constitution Bench. 

Accordingly, other arguments based on Articles 14 and 19 of the 

Constitution as well as competence of the legislature to enact 

* * 

such law are being examined. 

12) We have deeply deliberated on the arguments advanced by 

35 489 U.S. 749 (1989) 


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1&5 

various counsel appearing for different petitioners as well as 

* 

counter submissions made by counsel appearing on behalf of the 
State. Undoubtedly, the issue that confronts us is of seminal 
importance. In recent times, issues about the proprietary, 
significance, merits and demerits have generated, lots of debate 
among intelligentia. The Government claims that this provision is 
introduced in the Statute to achieve laudable objectives and it is 
in public interest. It is felt that this technology can solve many 
development challenges'. The petitioners argue that the move is 
impermissible as it violates their fundamental rights. It falls in the 
category of, what Ronald Dworkin calls, “hard cases’'. 
Nevertheless, the duty of the court is to decide such cases as 
welfand give better decision. While undertaking this exercise of 
judicial review, let us first keep in mind the width and extent of 
power of judicial review of a legislative action. The Court cannot 
question the wisdom of the Legislature in enacting a particular 
law. It is required to act within the domain available to it. 


Scope of Judicial Review of Legislative Act 


73) Under the Constitution, Supreme Court as well as High Courts 
are vested with the power of judicial review of not only 
administrative acts of the executive but legislative enactments 


WWW.LlVELAW.IN 


16 H 

passed by the legislature as well. This power is given to the High 
Courts under Article 226 of the Constitution and to the Supreme 
Court under Article 32 as well as Article 136 of the Constitution. 
At the same time, the parameters on which the power of judicial 
review of administrative act is tcbe undertaken are different from 

i 

the parameters on which validity of legislative enactment is to be 
examined. No doubt, in exercises of its power of judicial review 
of legislative action, the Supreme Court, or for that matter, the 
High Courts can declare law passed by the Parliament or the 

State Legislature as invalid. However, the power to strike down 

/ 

primary legislation enacted by the Union or the State Legislatures 
is on limited grounds. Courts can strike down legislation either on 
the basis that it falls foul of federal distribution of powers or that it 
contravenes fundamental rights or other Constitutional 
rights/provisions of the Constitution of India. No doubt, since the 
Supreme Court and the High Courts are treated as the 'ultimate 

* l 

arbiter in all matters involving interpretation of the Constitution, it 

is the Courts which have the final say on questions relating to 

rights and whether such a right is violated or not. The basis of 

the aforesaid statement lies in Article 13(2) of the Constitution 

which proscribes the State from making ‘any law which takes 

* # 

away or abridges the right conferred by Part IN’, enshrining 



Writ Petition (Civil) No. 247 of 2017 & Ork. 


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I 


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I4£ 

fundamental rights. It categorically states that any law made in 
contravention thereof, to the extent of the contravention, be void. 


74) We can also take note of Article 372 of the Constitution at this 

r 

stage which applies to pre-constitutional laws. Article 372(1) 

l 

reads as under: 

♦ 

“372. Continuance in force of existing laws and their 
adaptation.- 

(1) Notwithstanding the repeal by this Constitution of the 
enactments referred to in article 395 but subject to the 
other provisions of this Constitution, all the law in force in 
the territory of India immediately before the 
commencement of this Constitution shall continue in force 
therein until altered or repealed or amended by a 
competent Legislature or other competent authority.” 


In the context of judicial review of legislation, this provision 
gives an indication that all laws enforced prior to the 
commencement of the Constitution can be tested for compliance 
with the provisions of the Constitution by Courts. Such a power is 
recognised by this Court in Union of India & Ors. v. Sicom 
Limited & Anr™. In that judgment, it was also held that since the 
term laws', as per Article 372, includes common law the power of 
judicial, review of legislation, which is a part of common law 

applicable in India before the Constitution came into force, would 

* 

\ 

continue to vest in the Indian courts. 


36 (2009) 2 SCC 121 


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75) With this, we advert to the discussion on the grounds of judicial 
review that are available to adjudge the validity of a piece of 

i 

legislation passed by 'the Legislature. We' have already 
mentioned that a particular law or a provision contained in a 
statute can be invalidated on two grounds, namely: (i) it is not 
within the competence of the Legislature which passed the law, 
and/or (ii) it is in contravention of any of the fundamental rights 
stipulated in Part III of the Constitution or any other right/ 
provision of the Constitution. These contours of the judicial 
review are spelled out in the clear terms in case of Rakesh 

Kohli 37 , and particularly the following paragraphs: 

“16. The statute enacted by Parliament or a State 
Legislature cannot be declared unconstitutional lightly. 

The court must be able to hold beyond any iota of 
doubt’that the violation of the constitutional provisions 
• was so glaring that the legislative provision under 
challenge cannot stand. Sans flagrant violation of the 
constitutional provisions, the law made by Parliamen 
or a State Legislature is not declared bad. ; 

17 This Court has repeatedly stated that legislative 
enactment can be struck down by court only on two 
grounds, namely (i) that the appropriate legisla ure 
does not have the competence to make the law, and 
(ii) that it does not (sic) take away or abridge any _of 
the fundamental rights enumerated in Part III of the 
Constitution or any other constitutional provisions. 

In McDowell and Co. while dealing with the challenge 
to an enactment-based on Article 14, this Court state 
in para 43 of the Report as follows: (SCC pp. ft (-M) 

"“43. ... A law made by Parliament or the 


37 Footnote 20 above 

, Page 90 

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(67 

legislature can be struck down by courts on 
two grounds and two grounds alone viz. (1) 
lack of legislative competence, and (2) 
violation of any of the fundamental rights 
guaranteed in Part III of the Constitution or of 
any other constitutional provision. There is 
no third ground. ... if an enactment is 
challenged as violative of Article 14, it can be 
struck down only if it is found that it is 
violative of the equality clause/equal 
protection clause enshrined therein. 
Similarly, if an enactment is challenged as 
violative of any of the fundamental rights 
guaranteed by sub-clauses (a) to (g) of 
Article 19(1), it can be struck down only if it is 
found not saved by any of the clauses (2) to 
(6) of Article 19 and so on. No enactment can 
be struck down by just saying that it is 
' arbitrary or unreasonable. Some or the other 
constitutional infirmity has to be found before 
invalidating an Act. An enactment cannot be 
struck down on the ground that court thinks it 
unjustified. Parliament and the legislatures, 
composed as they are of the representatives 
of the people, are supposed to know and be 
aware of the needs of the people and what is 
good and bad for them. The court cannot sit 
in judgment over their wisdom." 

(emphasis supplied) 

26. in Mohd. Hanif Quareshi, the Constitution Bench 
further observed that there was always a presumption 
in favour of constitutionality of an enactment and the 
burden is upon him, who attacks it, to show that there 
has been a clear violation of the constitutional 
principles.. It stated in para 15 of the Report as under: 
(AIR pp. 740-41) I 

““15. ... The courts,- it is accepted, must 
presume that the legislature understands and 
correctly appreciates the needs of its own 
people, that its laws are directed to problems 
* made manifest-by experience and that its 
discriminations are based on adequate 
grounds. It must be borne in mind that the 
legislature is free to recognise degrees of 
harm and may confine its restrictions to 


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\G>?, 

those cases where the need is deemed to be 
the clearest and finally that in order to 
sustain the presumption of constitutionality 
the court may take into consideration matters 
of common knowledge, matters of 7 common 
report, the history of the times and may 
assume every state of facts which can be 
conceived existing at the time of legislation.” 

27. The above legal position has been reiterated by a 

Constitution Bench of this Court in Mahant Moti 

Das v. S.P. Sahi. 

# 

28. In Hamdard Dawakhana v. Union of India, inter 
alia, while referring to the earlier two decisions, 
namely, Bengal Immunity Co. Ltd. and Mahant Moti 
Das, it was observed in para 8 of the Report as 
follows: (Hamdard Dawakhana case, AIR p. 559): 

,,n 8.. Therefore, when the qonstitutionality of 
an enactment is challenged on the ground of 
violation,of any of the articles in Part III of the 
Constitution, the ascertainment of its true 
nature and character becomes necessary i.e. 
its subject-matter, the area in which it is 
intended to operate, its purport and intent 
have to be determined. In order to do so it is 
legitimate to take into consideration ail the 
factors such as history of the legislation, the 
purpose thereof, the surrounding 
..circumstances and conditions, the mischief 
which it intended to suppress, the remedy for 
the disease which the legislature resolved to 
cure and the true reason for the remedy....” 

In Hamdard Dawakhana, the Court also followed the 
statement of law in Mahant Moti Das and the two 
earlier decisions, namely, Charanjit Lai 
• Chowdhury v. Union • of India and State of 
Bombay v.F.N. Balsara and reiterated the principle 
that presumption was ■ always in favour , of 
constitutionality of an enactment. 

XX XX XX 

30. A well-known principle that in the field of taxation, 
the. legislature enjoys a greater latitude for 


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■ ♦ 

classification, has been noted by this Court in a long 
line of cases. Some of these decisions are Steelworth 
Ltd. v. State of Assam; Gopal Narain v. State of UP.; 
Ganga Sugar Corpn. Ltd. v. State of U.P.; R.K. 
Garg v. Union of India; and State of W'.B. v. E.I.T.A. 

India Ltd.” 


76) Again in Ashok Kumar Thakur v. Union of India & Ors. 38 , this 

Court made the following pertinent observations: 

“219. A legislation passed by Parliament can be 
challenged only on constitutionally recognised 
grounds. Ordinarily, grounds of attack of a legislation 
is whether the legislature has legislative competence 
or whether the legislation is ultra vires the provisions 
of the Constitution. If any of the provisions of the 
legislation violates fundamental rights or any other 
provisions of the Constitution, it could certainly be a • 
valid ground to set aside the legislation by invoking the 
power of judicial review. A legislation could also be 
challenged as unreasonable if it violates the principles 
of equality adumbrated in our Constitution or it 
unreasonably restricts the fundamental rights under 
‘ Article 19 of the Constitution. A legislation cannot be 
challenged simply on the ground of unreasonableness 
because that by itself does not constitute a ground. _ 

- The validity of q constitutional amendment and the 
validity of plenary legislation have to be decided purely 
as questions of constitutional law. This Court in State 
of Rajasthan v, Union of India said: (SCC p. 660, para 
149) 

. “149. ... if a question brought before the 
court is purely a politipal question not 
involving determination of any legal or 
constitutional right or obligation, the court 
would not entertain it, since the court is 
concerned only with adjudication of legal 
rights and liabilities,” 

Therefore, the plea of the petitioner that the legislation 
itself was intended to please a section of the 
community as part of the vote catching mechanism is 


38 (2008) 6 SCC 1 

4 

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no 

not a legally acceptable plea and it is only to be 
rejected.” 


77) Furthermore, it also needs to be specifically noted that this Court 
emphasised that apart from the aforesaid two grounds no third 
ground is available to invalidate any piece of legislation. In this 
behalf it would be apposite to reproduce the following 
observations .from State of A.P. & Ors. v. McDowell & Co. & 

t 

Ors. 33 , which is a judgment rendered by a three Judge Bench of 
this Court: 

"43...A law made by Parliament or the legislature can 
be struck down by courts on two grounds and two 
grounds alone, viz., (1) lack of legislative competence 
and (2) violation of any of the fundamental rights 
guaranteed in Part III of the Constitution or of any 
other constitutional provision. There is no third ground. 

We do not wish to enter into a discussion of the 
concepts of procedural unreasonableness and 
substantive unreasonableness — concepts inspired by 
. the decisions of TJnited States Supreme Court. Even in 
U.S.A., these concepts and in particular the concept of 
substantive due process have proved to be of 
' unending controversy, the latest thinking tending 
towards a severe curtailment of this ground 
(substantive due process). The main criticism against 
the ground of substantive due process being that it 
seeks to set up the courts as arbiters of the wisdom of 
the legislature in enacting the particular piece of 
legislation. It is enough for us to say that by whatever 
name it - is characterised, the ground of invalidation 
must fall within the four corners of the two grounds 
mentioned above. In other words, say, if an enactment 
is challenged as violative of Article 14, it can be struck 
down only if it is found that it is violative of the equality 
clause/equal protection clause enshrined therein. 
Similarly, if an enactment is challenged as violative of 
any of the fundamental rights guaranteed by clauses 

39 (1996) 3 SCC 709 i 


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(a) to (g) of Article 19(1), it can be struck down only if it 
is found not saved by any of the clauses (2) to (6) of 
Article 19 and so on. No enactment can be struck 
down by just saying that it is arbitrary or unreasonable. 

Some or other constitutional infirmity has to be found 
before invalidating an Act. An enactment cannot be 
struck down on the ground that court thinks it 
unjustified. Parliament and the legislatures, composed 
as they are of the representatives of the people, are 
supposed to know and be aware of the needs of the 
people and what is good and bad for them. The court 
cannot sit in judgment over their wisdom. In this 
connection, it should be remembered that even in the 
case of administrative action, the scope of judicial . 
review is limited to three grounds, viz., (i) 
unreasonableness, which can more appropriately be 
called' irrationality, (ii) illegality and (iii) procedural 
impropriety (see Council of Civil Service Unions _ v, . 
Minister for Civil Service [1985 AC 374 : (1984) 3 All 
ER 935 : (1984) 3 WLR 1174] which decision has 
been accepted by this Court as well). The applicability 
of doctrine of proportionality even in administrative law 
sphere is yet a debatable issue. (See the opinions of 
Lords Lowry and Ackner in R. v. Secy, of State for 
Home Deptt , ex p Brind [1991 AC 696 : (1991) 1 All 
ER 720] AC at 766-67 and 762.) It would be.rather odd 
if an enactment were to be struck down by applying 
the said principle when its applicability even in 
administrative law sphere is .not fully and finally 

* settled..." 

✓ 

78) Another aspect in this context, which needs to be emphasized, is 
that a legislation cannot be declared unconstitutional on the 
ground that it is ‘arbitrary’ inasmuch as examining as to whether a 
particular Act is arbitrary or not implies a value judgment and the 
courts do not examine the wisdom of legislative choices and, 
therefore, cannot undertake this exercise. This was so 
recognised in a recent judgment of this. Court Rajbala & Ors. v. 


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State of Haryana & Ors/° wherein this Court held as under; 


64. From the above extract from McDowell & Co. 
case it is clear that the courts in this country do not 
undertake the task of declaring a piece of legislation 
unconstitutional on the ground that the legislation is 
"arbitrary" since such an exercise implies a value 
judgment and courts do not examine the wisdom of 
legislative choices unless the legislation is otherwise 
violative of some specific provision of the Constitution. 
To undertake such an examination would amount to 
virtually importing the doctrine of “substantive due 
process” employed by the American Supreme Court at 
an earlier point of time while examining the 
constitutionality of Indian legislation. As pointed out in 
the above extract, even in United States the doctrine 
is currently of doubtful legitimacy. This Court long back 
in AS. Krishna v. State of Madras declared that the 
doctrine of due process has no application under the 
Indian Constitution As pointed out by Frankfurter, J,, 
arbitrariness became a mantra. 

65. For the above reasons, we are of the opinion that 
it is not permissible for this Court to declare a statute 
unconstitutional on the ground that it is ‘arbitrary’.” 


79) Same sentiments were expressed earlier by this Court in K.T. 

Plantation Private Limited & Anr , 41 in the following words; 

“205. Plea of unreasonableness, arbitrariness, 
proportionality, etc. always raises an element of 
subjectivity on which a court cannot strike down a 
statute or a statutory provision, especially when the 
right to property is no more a fundamental right. 
Otherwise the court will be substituting its wisdom to 
that of the legislature,-which is impermissible in our 
constitutional democracy." 

A fortiorari, a law cannot be invalidated on the ground that 
the Legislature did not apply its mind or it was prompted by some 

40 (2016) 2 SCC 445 

41 Footnote 19 above, 


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improper motive. . ^ 

r 

• * 

1 

80) It is; thus, clear that in exercise of power of judicial review, Indian 
Courts are invested with powers to strike down primary legislation 
enacted by the Parliament or the State legislatures. However, 
while undertaking this exercise of judicial review, the same is to 
be done at three levels. In the first stage, the Court would 

examine as to whether impugned provision, in a legislation is 

■ * 
s 

compatible with the fundamental rights or the Constitutional 
provisions (substantive judicial review) or it falls foul of the federal 
distribution of powers (procedural judicial review). If it is not 

* 4 

found to be so, no further exercise is-needed as challenge would 

f 

fail. ■ On the other hand, if it is found that Legislature lacks 
competence as the subject legislated was not within the powers 
assigned in the list in VII Schedule, no further enquiry is needed 
and such a law is to be declared as ultravires the Constitution. 
However, while undertaking substantive judicial review, if it is 
found that the impugned provision appears to be violative of 
fundamental ■ rights or other Constitutional rights, the Court 
reaches the second stage of review. At this second phase of 
enquiry, the Court is supposed to undertake the exercise as to 
whether the impugned provision can still be saved by reading it 


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down so as to bring it in conformity with the Constitutional 
provisions. If that is not achievable then the enquiry enters the 
third stage. If the offending portion of the statute is severable, it 
is severed and the Court strikes down the impugned provision 
declaring the same as unconstitutional. 

* 

81) Keeping in view the aforesaid parameters we, at this stage, we 

want to devote some time discussing the arguments of the 

♦ 

petitioners based on the concept of ‘limited government. 

• » 

i 

Concent of ‘Limited Government’ and its impact on powers of . 
Judicial Review 

82) There cannot be any dispute about the manner in which Mr. 
Shyam Divan explained the concept of ‘limited Government’ in his 
submissions. Undoubtedly, the Constitution of India, as an 
instrument of governance of the State, delineates the functions 
and powers of each wing of the State, namely, the Legislature, 

* 4 

the Judiciary and the Executive. It also enshrines the principle of 

separation of powers which mandates that each wing of the State 

has to function within its own domain and no wing of the State is 

entitled to trample over the function assigned to the other wing of 

the State, This fundamental document of governance also 
« 

contains principle of federalism wherein the Union is assigned 


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m 

certain powers and likewise powers of the State are also 
prescribed. In this context, the Union Legislature, i.e. the 
Parliament, as well as the State- Legislatures are given specific 

areas in respect of which they have power to legislate. That is so 

, « 

stipulated in Schedule Vli of the Constitution wherein List I 

t 

enumerates the subjects over which Parliament has the 
dominion, List II spells out those areas where the State 
Legislatures have the power to make laws while List 111 is the 
Concurrent List which is accessible both to the Union as well as 
the State Governments. The Scheme pertaining to making laws 
by the Parliament as well as by the Legislatures of the State is 
primarily contained in Articles 245 to 254 of the Constitution. 
Therefore, it cannot be disputed that each wing of the State to act 
within the sphere delineated for it under the Constitution. It is 

4 ft « 

correct that crossing these limits would render the action of the 

i 

State ultra vires the Constitution. When it comes to power of 
taxation, undoubtedly, power to tax is treated as sovereign power 
of any State. However, there are constitutional limitations briefly 
described above. In a nine Judge Bench decision of this Court in 
Jindal Stainless Ltd. <& Anr. v. State of Haryana & Ors. 42 
discussion on these constitutional limitations are as follows: 

_ ’ « 

42 (2016) 11 Scale 1 


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06 

"20. Exercise of sovereign power is, however, subject 
to Constitutional limitations especially in a federal 
system like ours where the States also to the extent 
permissible exercise the power to.make jaws including 
laws that levy taxes, duties and fees. That the power 
to levy taxes is subject to constitutional limitations is 
no longer res-integra. A Constitution Bench of this 
Court has in Synthetics and Chemicals Ltd. v. State of 
U.P. (1990) 1 SCC 109 recognised that in India the 
Centre and the States both enjoy the exercise of 
• sovereign power, to the extent the Constitution confers 
upon them that power. This Court declared: 

"56 ... We would not like, however, to 
embark upon any theory of police power 
because the Indian Constitution does not 
recognise police power as such. But we must 
recognise the exercise of Sovereign power 
which gives the State sufficient authority to * 
enact any law subject to the limitations of the 
Constitution to discharge its functions. 

Hence, the Indian Constitution as a 
sovereign State has power.to legislate on all 
• branches except to the limitation as to the 
division of powers between the Centre and 
the States, and also subject to the 
fundamental: rights guaranteed under the 
Constitution. The Indian States, between the 
Centre and the States, has sovereign power. 

The sovereign power is plenary and inherent 
in every sovereign State to do all things 
which promote the health, peace, morals, 
education and good order of the people. 
Sovereignty is difficult to define. This power 
of sovereignty is, however, subject to 
constitutional limitations."This power, 
according to some constitutional authorities, 
is to the public what necessity is to the 
individual. Right to tax or levy impost must be 
in accordance with the provisions of the 
Constitution.; 

21. What then are the Constitutional limitations on the 
power of the State legislatures to levy taxes or for that 
matter enact legislations in the field reserved for them 
under the relevant entries of List II and III of the 
Seventh Schedule. The first and the foremost of these 
limitations appears in Article 13 of the Constitution of 


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p*> 

India which declares that all laws in force in the 
territory of India immediately before the 
commencement 'of the Constitution are void to the 
extent they are inconsistent with the provisions of Part 
III dealing with the fundamental rights guaranteed to 
the citizens. It forbids the States from making any law 
which takes away or abridges, any provision of Part III. 
Any law made in contravention of the said rights shall 
to the extent of contravention be void. There is no gain 
saying that the power to enact laws has been 
conferred upon the Parliament subject to the above 
Constitutional limitation. So also in terms of Article 
248, the residuary power to impose a tax not 
otherwise mentioned in the Concurrent List or the 
State List has been vested in the Parliament to the 
exclusion of the State legislatures, and the States' 
power to levy taxes limited to what is specifically 
reserved in their favour and no more. 

22. Article 249 similarly empowers the Parliament to 
legislate with respect to a matter in the State List for 
national interest provided the Council of States has 
declared by a resolution supported by not less than 
two-thirds of the members present and voting that it is 
necessary or expedient in national interest to do so. 
The power is, available till such time any resolution 
remains in force in terms of Article 249(2) and the 
proviso thereunder. 

• 23. Article 250 is yet another provision which 
empowers the Parliament to legislate with respect to 
any matter in the State List when there is a 
proclamation of emergency. In the event of an 
inconsistency between laws made by Parliament 
under Articles 249 and 250, and laws made by 
legislature of the States, the law made by Parliament 
shall, to the extent of the inconsistency, prevail over 
the law made by the State in terms of Article 251. 

24. The power of Parliament to legislate for two or 
more States by consent, in regard to matters not 
otherwise within the power of the Parliament is 
fegulated by Article 252, while Article 253 starting with 
a non-obstante clause empowers Parliament to make 
any law for the whole country or any part of the 
territory of India for implementing any treaty, 
agreement or convention with any other country or 


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n9 

* 

countries or any decision made at any international 
conference, association or other body." 

83) Mr. Divan, however, made an earnest endeavour to further 
broaden this concept of 'limited Government by giving an 
altogether different slant. He submitted that there are certain 
things that the States simply cannot do because the action 
fundamentally alters the relationship between the citizens and the 
State. In this hue, he submitted that it was impermissible for the 
State to undertake the exercise of collection of bio-metric data, 
including fingerprints and storing at a central depository as it puts 
the State in an extremely dominant position in relation to the 
individual citizens. He also submitted that it will put the State, in a 
position to target an individual and engage in surveillance thereby 
depriving or withholding the enjoyment of his rights and 
entitlements, which is totally iropermissible in a country where 
governance of the State of founded on the concept of ‘limited 
Government'. Again, this concept of limited government is woven 

around Article 21 of the Constitution. 

84) Undoubtedly, we are in the era of liberalised democracy. In a 
democratic society governed by the-Constitution, there is a strong 
trend towards the Constitutionalisation of democratic politics, 
where the actions of democratic elected Government are judged 


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in the light of the Constitution. In this context, judiciary assumes 

the role of protector of the Constitution and democracy, being the 

' > 

ultimate arbiter in all matters involving the interpretation of the 
Constitution. 

* 

Having said so, when it comes to exercising the power of judicial 

review of a legislation, the scope of such a power has to be kept 

in mind and the power is to be exercised within the limited sphere 

assigned to the judiciary to undertake the judicial review. This 

♦ 

has already been mentioned above. Therefore, unless the 
petitioner demonstrates that the Parliament, in enacting the 
impugned provision, has exceeded its power prescribed in the 
Constitution or this provision violates any of the provision, the 
argument predicated on ‘limited governance will not succeed. 
One of the aforesaid ingredients needs to be established by the 
petitioners in order to succeed. 

Even in the case of Thakur bharath Singh 43 relied upon by Mr. 
Divan, wherein executive order was passed imposing certain 
restrictions requiring the respondent therein to reside at a 
particular place as specified in the order, which was passed in 
exercise of powers contained under Section 3(1 )(b) of the M.P. 

Footnote 9 above , 




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Public Security Act, 1959, the Court struck down and quashed the 
order only after it found that restrictions contained therein were 

7 

unreasonable and violative of fundamental freedom guaranteed 
under Article 19(1 )(d) and (e) of the Constitution of India. 

i 

87) ; With this, we proceed to consider the arguments on which vires of 

the impugned provisions are questioned: 

Argument of Le gislative Competenr.p 

88) It is not denied by the petitioners that having regard to the 

provisions of Article 246 of the Constitution and Entries 82 and 97 

of List I, the Parliament has requisite competence to enact the 
« 

impugned legislation. However, the submission of the petitioners 
was that the impugned- legislative provision was made as per 
which enrolment under Aadhaar had become mandatory for the 
income tax assessees, whereas this Court has passed various 
orders repeatedly emphasising that enrolment for Aadhaar card ' 
has to be voluntary. On this basis, the argument is that the 
Legislature lacked the authority to pass a law contrary to the 
judgments of this Court, without removing the basis of those 
judgments. It was also argued that even Aadhaar Act was 
voluntary in nature and the basis of the judgments of this Court 
could be taken away only by making enrolment under the 


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Aadhaar Act compulsory, which was not done. 

89) Before proceeding to discuss this argument, one aspect of the 
matter needs clarification. There was a debate as to whether 
Aadhaar Act is voluntary or even that Act makes enrolment under 
Aadhaar mandatory. 

* 4 

90) First thing that is to be kept in mind is that the Aadhaar Act is 
enacted to enable the Government to identify individuals for 
delivery of benefits, subsidies and services under various welfare 
schemes. This is so mentioned in Section 7 of the Aadhaar Act 
which states that proof of Aadhaar number is necessary for 
receipt of such subsidies, benefits and services. At the same 
time, it cannot be disputed that once a person enrols himself and 
obtains Aadhaar number as mentioned in Section 3 of the 

i ♦ 

*» 

Aadhaar Act, such Aadhaar number can be used for many other 

purposes. In fact, this Aadhaar number becomes the Unique 

Identity (UID) of that person. Having said that, it is clear that 

there is no provision in Aadhaar Act which makes enrolment 

compulsory. May be for the purpose of obtaining benefits, proof 

of Aadhaar card is necessary as per Section 7 of the Act. Proviso 

to Section 7 stipulates that if an Aadhaar number is not assigned 

* 

to enable an individual, he shall be offered alternate and viable 


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ISi 

means of identification for delivery of the subsidy, benefit or 
service. According to the petitioners, this proviso, with 

: y 

acknowledges alternate and viable means of identification, and 

* 

* * 

* 

therefore makes Aadhaar optional and voluntary and the 
enrolment is not necessary even for the purpose of receiving 
subsidies, benefits and services under various schemes of. the 
Government. The respondents, however, interpret the proviso 
differently and there plea is that the words ‘if an Aadhaar number 
is not assigned to an individual’ deal with only that situation where 
application for Aadhaar has been made but for certain reasons 

i 

Aadhaar number has not been assigned as it may.take some time 
to give Aadhaar card. Therefore, this proviso is only by way of an 
interim measure till Aadhaar number is assigned, which is 

4 

otherwjse compulsory for obtaining certain benefits as stated in 
Section 7 of the Aadhaar Act. Fact remains that as per the 
Government and U1DAI itself, the requirement of obtaining 
Aadhaar number is voluntary. It has been so claimed by UIDAI 
on its website and clarification to this effect has also been issued 
by UIDAI. 

91) . Thus, enrolment under Aadhaar is voluntary. However, it is a 
moot question as to whether for obtaining benefits as prescribed 


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under Section 7 of the Aadhaar Act, it is mandatory to give 

Aadhaar number or not is a debatable issue which we are not 

♦ * * 7 

addressing as this very issue is squarely raised which is the 
subject matter of other writ petition filed and pending in this Court. 

92) On the one hand, enrollment under Aadhaar card is voluntary, 

however, for the purposes of Income Tax Act, Section 139AA 

makes it compulsory for the assessees to give Aadhaar number 

which means insofar as income tax assessees are concerned, 

they have to necessarily enroll themselves under the Aadhaar Act 

« 

and obtain Aadhaar number which will be their identification 
number as that has become the requirement under the Income 
Tax Act. The contention that since enrollment under Aadhaar Act 
is vqluntary, it cannot be compulsory under the income Tax Act, 

m 

cannot be countenanced. ,As already mentioned above, purpose 
for enrollment under the Aadhaar Act is to avail benefits of various 
welfare schemes etc. as stipulated in Section 7 of the Aadhaar 
Act. Purpose behind Income Tax Act, on the other hand, is 

4 

W 

entirely different which’has already been discussed in detail 
above. For achieving the said purpose, viz., to curb blackimongy, 
money laundering and tax evasion etc., if the Parliament chooses 
to make the provision mandatory under the Income Tax Act, the 


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competence of the Parliament cannot be questioned on the 
ground that it is impermissible only because under Aadhaar Act, 
the provision is directory in nature, it is the prerogative of the 
Parliament to make a particular provision directory in one statute 
and mandatory/compulsory in other. That by itself cannot be a 


ground to question the competence of the legislature. After all, 

Aadhaar Act is not a mother Act. Two laws, i.e., Aadhaar Act, on 

the one hand, and law in the form of Section 139AA of the Income 

Tax Act, on the other hand, are two different stand alone 

provisions/laws and validity of one cannot be examined in the 

light of provisions of other Acts. In 'Municipal Corporation of 

Delhi v. Shiv Shanker, if the objects of two statutory provisions 

are different and language of each statute is restricted to its own 

objects or subject, then they are generally intended to run in 
* 

parallel lines without meeting and there would be no real conflict 
though apparently it may appear to be so on the surface. We 
reproduce hereunder the discussion to the aforesaid aspect 


contained in the said judgment: 

“5, It is only when a consistent body of law cannot 
be maintained without abrogation of the previous law 
that the plea of implied repeal should be sustained. To 
determine if a later statutory provision repeals by 
implication an earlier one it is accordingly necessary to 
closely scrutinise and consider the true meaning and 
effect both of the earlier and the later statute. Until this 


44 (1971) 1 see 442 


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is done it cannot be satisfactorily ascertained if any 
fatal inconsistency exists between them. The meaning, 
scope and effect of the two statutes, as discovered o.n 
scrutiny, determines the legislative intent as to whether 
the earlier law shall cease or shall only be 
supplemented. If the objects of the two statutory 
provisions are different and the language of each 
statute is restricted to its own objects or subject, then 
they are generally intended to run in parallel lines 
without meeting and there would be no real conflict 
though apparently it may appear to be so on the 
surface. Statutes in pari materia although in apparent 
conflict, should also, so far as reasonably possible, be 
construed to be in harmony with each other and it is 
only when there is an irreconcilable conflict between 
the new provision and the prior statute relating to the 
same subject-matter, that the former, being the later 
expression of the legislature, may be held to prevail, 
the prior law yielding to the extent of the conflict. The 
same rule of irreconcilable repugnancy controls 
implied repeal of a general by a special statute. The 
subsequent provision treating a phase of the same 
general subject-matter in a more minute way may be 
intended to imply repeal protanto of the repugnant 
general provision with which it cannot reasonably 
co-exist. When there is no inconsistency between the 
general and the special statute the later may welt be 
construed as supplementary.” 


93) In view of the above, wej are not impressed by the contention of 
the petitioners that the two enactments are contradictory with 
each other. A harmonious reading of the two enactments would 
clearly suggests that whereas enrollment of Aadhaaar is voluntary 
when it comes to taking benefits of various welfare schemes even 
if it is presumed that requirement of Section 7 of Aadhaar Act that 
it is necessary to provide Aadhaar number to avail the benefits of 

i 

» 

schemes and services, it is upto a person to avail those benefits 


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or not. On the other hand, purpose behind enacting Section 

139AA is to check a menace of black money as well as money 

laundering and also to widen the income tax net 'so as to cover 

« 

those persons who are evading the payment of tax. 

94) Main emphasis, however, is on the plea that Parliament or any 

State legislature cannot pass a law that overrules a judgment 

* 

thereby nullifying the said decision, that too without removing the 

* 

basis of the decision. This argument appears to be attractive 
inasmuch as few orders are passed by this Court in pending writ 
petitions which are to the effect that the enrollment of Aadhaar 

4 

would be voluntary. However, it needs to be kept in mind that the 
orders have been passed in the petitions where Aadhaar scheme 
floated as an executive/administrative measure has been 
challenged. In those* cases, the said orders are not passed in a 
case where the Court was dealing with a statute passed by the 
Parliament. Further, these are interim orders as the Court was of 
the opinion that till the matter is decided finally in the context of 
Right to Privacy issue, the implementation of the said Aadhaar 
scheme would remain voluntary. In fact, the main issue as to 
whether Aadhaar card scheme whereby biometric data of an 
individual is collected violates Right to Privacy and, therefore, is 
offensive of Article 21 of the Constitution- or not is yet to be 


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182 

decided. In the process, the Constitution Bench is also called 

# 

upon to decide as to whether Right to Privacy is a part of Article 
21 of the Constitution at all. Therefore, no final decision has been 
taken. In a situation like this, it cannot be said that Parliament is 
precluded from or it is rendered incompetent to pass such a law. 

t 

That apart, the argument of the petitioners is that the basis on 
which'the aforesaid orders are passed has to be removed, which 
is not done. According to the petitioners, it could be done only by 
making Aadhaar Act compulsory. It is difficult to accept this 
contention for two reasons: first, when the orders passed by this 
Court which are relied upon by the petitioners were passed when 

4 

Aadhaar Act was not even enacted. Secondly, as already 
discussed in detail above, Aadhaar Act and the law contained in 
Section 139AA of the Income Tax Act deal with two different 
situations and operate in different fields. This argument of 
legislature incompetence also, therefore, has fails. 

whpther Section 139AA of the Act is discriminatory and 
nffpnris Article 14 of the Constitution of India? 

Article 14, which enshrines the principle of equality as a 

fundamental right mandates that the State shall not deny to any 

person equality before the Law or the equal protection of the laws 

within the territory of India. It, thus, gives the right to equal 


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treatment in similar circumstances, both in privileges conferred 

and in the liabilities imposed. In Sri Srinavasa Theatre & Ors. v. 

Government of Tamil Nadu & Ors/ 5 , this Court explained that 

» 

the two expressions ‘equality before law and equal protection of 

law’ do not mean the same thing even if there may be much in 

* 

common between them. “Equality before law" is a dynamic 

concept having many facets. One facet is that there shall be no 

privileged person or class and that one shall be above law. 

Another facet Is “the obligation upon the State to bring about, 

through the machinery of law, a more equal society... For, equality 

■ * 

before law can be predicated meaningfully only in an equal 
society...". The Court further observed that Article 14 prescribes 
equality before law. But the fact remains that all persons are not 
equal by nature, attainment or circumstances, and, therefore, a 
mechanical equality before the law may result in injustice. Thus, 
the guarantee against the denial of equal protection of the law 
does not mean that identically the same rules of law should be 
made applicable to all persons in spite of difference in 
circumstances or conditions {See Chiranjit Lai Chowdhun v. 

P * 

Union of India & Ors/ 5 }. 

95) The varying needs of different classes or sections of people 

45 (1992) 2 SCC 643 

46 1950 SCR 869 


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require differential' and separate treatment. The Legislature is 
required to deal with diverse problems arising out of an infinite 
variety of human relations. It must, therefore,’necessarily have 
the power of making laws to attain particular objects and, for that 
purpose, of distinguishing, selecting and classifying persons and 

i 

things upon which its laws are to operate. The principle of 

equality of law, thus, means not that the same law should apply to 

everyone but that a law should deal alike with all in one class; 

* 

that there should be 4n equality of treatment under equal 
circumstances. It means "that equals should not be treated unlike 
and unlikes should not be treated alike. Likes should be treated 

alike. 

96) What follows is that Article 14 forbids class legislation; it does not 
forbid ' reasonable classification of persons, • objects and 
transactions by the Legislature for the'purpose of achieving 
specific ends. Classification to be reasonable should fulfil the 

following two tests: 

(1) It should not be arbitrary, artificial or evasive. It should be 

✓ 

based on an intelligible differentia, some real and 
substantial distinction, which distinguishes persons or things 
grouped together in the class from others left out of it. 


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(2) The differentia adopted as the basis of classification must 
have a rational or reasonable nexus with the object sought 

7 

to be achieved by the statute in question. 

Thus, Article 14 in its ambit and sweep involves two facets, 

viz., it permits reasonable classification which is.founded on 

intelligible differentia and accommodates the practical needs of 

the society and the differential must have a rational relation to the 

• * 

objects sought to be achieved. Further, it does not allow any kind 

of arbitrariness and ensures fairness and equality of treatment. It 

is the fonjuris of our Constitution, the fountainhead of justice. 

Differential treatment does not per se amount to violation of 

Article 14 of the Constitution and it violates Article 14 only when 

there is no reasonable basis and there are several tests to decide 

whether a classification is reasonable or not and one of the tests 

« 

will be as to whether it is conducive to the functioning of modern 
society. 

Insofar as the impugned provision is concerned, Mr. Datar had 
conceded that first test that of reasonable classification had been 
satisfied as he conceded that individual assesses form a separate 
class and the impugned provision which targeted only individual 
assesses would not be discriminatory on this ground. His whole 


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emphasis was that Section 139AA did not satisfy the second limb 
s of the twin tests'of classification as, according to him, this 
provision had no rational nexus with the object sought to be 

achieved, 

98) In this behalf, his submission-was that if the purpose of the 
provision was to curb circulation of black money, such an object 
was not achievable by seeing PAN with Aadhaar inasmuch as 
Aadhaar is only for individuals. His submission was that it is only 
the individuals who are responsible for generating black money or 
money laundering. This was the b.asis for Mr. Datar's submission. 

We find it somewhat difficult to accept such a submission. 

% 

99) Unearthing black money or checking money laundering is to be 

achieved to whatever extent possible. Various measures can be 

taken in this behalf. If one of the measures is introduction of 

* 

Aadhaar into the tax regime, it cannot be denounced only 

because of the reason that the purpose would not be achieved 

fully. Such kind of menace, which is deep rooted, needs to be 

tackled by taking multiple actions and those actions may be 

initiated at the same time. It is the combined effect of these 

actions which may yield results and each individual action 

considered in. isolation may not be sufficient. Therefore, 
» 

Page 115 

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163 

* 

rationality of a particular measure cannot be challenged on the 
ground that it has no nexus with the objective to be achieved. Of 

7 

course, there is a definite objective. For this purpose alone, 
individual measure .cannot be ridiculed. We have already taken 
note of the recommendations of SIT on black money headed by 
Justice (VLB. Shah. We have also reproduced the measures 
suggested by the committee headed by Chairman, CBDT on 
‘Measures to tackle black money in India and Abroad’. They 
have, in no uncertain terms, suggested that one singular proof of 
identity of a person for entering into finahce/business transactions 
etc may go a long way in curbing this foul practice. That apart, 
even if solitary purpose of de-duplication of PAN cards is taken 
into consideration, that may'be sufficient to meet the second test 
of Article 14. It has come on record that 11.35 lakhs cases of 

V 

duplicate PAN or fraudulent PAN cards have already been 

detected and out of this 10.52 lakh cases pertain to individual 

assessees. Seeding of Aadhaar with PAN has certain benefits 

which have, already been enumerated. Furthermore, even when 

we address the issue of shell companies, fact remains that 

* * 

companies are after jail floated by individuals and these 
individuals have to produce documents to show their identity. It 
■was sought to be argued that persons found with duplicate/bpgus 


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l 

PAN cards are hardly 0.4% and, therefore, there was no need to 
have such a provision. VVe cannot go by percentage figures. The 
absolute number of such cases is 10.52 lakh, which figure, by no 
means, can be termed as miniscule, to harm the economy and 
create adverse effect on the nation. Respondents have argued 
that Aadhaar will ensure that there is no duplication of identity as 
bio-metric will not allow that and, therefore, it may check the 
growth of shell companies as well. 

100) Having regard to the aforesaid factors, it cannot be said that there 
is no nexus with the objective sought to be achieved. 

1 • » 

101) Another argument predicated on Article 14 advanced by Mr. Divan 

* 

was that it was discriminatory in nature as it created two classes; 
one class of those who volunteered to enrol themselves under 
Aadhaar scheme and other class of those who did not want it to 
be so. It was further submitted that in this manner this provision 
had the effect of creating an artificial class of those who object to 
Aadhaar scheme as self conscious persons. This is a fallacious 
. argument. 

102) Validity of a legislative act cannot be challenged by creating 
artificial classes by those who are objecting to the said provision 


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\°>5 

and predicating- the. argument of discrimination on that basis. 
When a law is made-, all those who are covered by that law are 
supposed to follow the same. No doubt, it is trie right of a citizen 
to approach the Court and question the constitutional validity of a 
particular law enacted by the Legislature. However, merely 
because a section of persons opposes the law, would not mean 
that it has become a separate class by itself. Two classes, 
cannot be created on this basis, namely, one of those who want 
to be covered by the scheme, and others who do not want to be 
covered- thereby. If such- a proposition is accepted, every 
legislation would be prone to challenge on the ground of 
discrimination. As far as plea of discrimination is concerned, it 
has to be raised by showing that the impugned law creates two 

classes without any reasonable classification and treats them 

* 

differently. • 

103) The principle of equality does not mean that every law must have 
universal application for all persons who are not by nature, 
attainment or circumstances, in the same position, as the varying 
needs of different classes of persons often require separate 
treatment. It is permissible for the State to classify persons for 
legitimate purposes. The Legislature is also competent to 


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exercise its discretion and make classification. In the present 

i 

scenario the impugned legislation has created two classes, i.e. 
one class of those persons who are assessees and other class of 
those'persons who are income tax assessees. It is because of 
the reason that the impugned provision is applicable only to those 

i 

who are filing income t ix returns. Therefore, the only question 
would be as to whether this classification is reasonable or not. 
There cannot be any dispute that there is a reasonable basis for 

V 

differentiation and, therefore, equal protection clause enshrined in 

* 

Article 14 is not attracted. What Article 14 prohibits is class 
legislation and not reasonable classification for the purpose of 
legislation. All income tax asessees constitute one class and they 
are treated alike by the impugned provision. * 

104) It may also be pointed out that the counsel for the respondents 
had argued that doctrine of proportionality cannot be read into 
Article 14 of the Constitution and in support reliance has been 
placed on the judgment of this Court in E.P. Royappa v. State of 
Tamil Nadu & Anr/ 7 , This aspect need not be considered in 
detail inasmuch as Mr. Datar, learned counsel appearing for the 
petitioner, had conceded at the Bar that he had invoked the 
doctrine of proportionality only in the context of Article 19(1)(g). 

47 (1974) 4 SCC 3 


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1^? 

105) We, therefore,, reject the argument founded on Article 14 of the 
Constitution. 


Whether impug ned p rovision is violative of Article 19(1)( g) 

106) Invocation of provisions of Article 19(1)(g) of the Constitution by 
the petitioners, was in the context of proviso to sub-section (2) of 
Section 139AA of the Act which contains the consequences of the 
failure to intimate the Aadhaar number to such authority in such 
form and manner as may be prescribed and reads as under: 

(2) Every person who has been allotted permanent 
account number as on the 1 st day of July, 2017, and 
who is eligible to obtain Aadhaar number, shall 
intimate his Aadhaar number to such authority in such 
form and manner as may be prescribed, on or before 
a date to be notified by the Central Government in the 
Official Gazette: 

Provided that in case of failure to intimate the 
Aadhaar number, the permanent account number 
allotted to the person shall be deemed to be 
invalid and the other provisions of this Act shall 
apply, as if the person had not applied for 
allotment of permanent account number.” 


,107) The submission was that the aforesaid penal consequence was 
draconian in nature and totally disproportionate to the 
non-compliance of provisions contained in Section 139AA. It was 
pointed out that persoris effected by Section 139AA are only 
individuals, i.e. natural persons and not legal/artificial 


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personalities like companies, trusts, partnership firms, etc. Thus, 

individuals who are professionals like lawyers, doctors, architects 

* ♦ * 

and lakhs of businessmen having small or micro enterprises are 
going to suffer such a serious consequence for failure to intimate 

Aadhaar number to the designated authority. According to him, 

• ♦ * 

consequence of not having a PAN card results in a virtual ‘civil 

* 

death’ as one example given was that under Rule 114B of the 
Rules, it will not be possible to operate bank accounts with 
transaction above Rs.50,000/- or to use credit/debit cards or 

4 

purchase motor vehicles or property etc. 


108) Section 139A deals with PAN. Sub-section (1) thereof requires 
four classes of persons to have the PAN allotted. It reads as 
under: 


- “139A. Permanent account number. - (1) Every 

person, - 

(i) if his total income or the total income of any 
other person in respect of which he is 
assessable under this Act during any previous 
year exceeded the maximum amount which is 
not chargeable to income-tax; or 

(ii) carrying on any business or profession whose 
total sales, turnover or gross receipts are or is 
likely to exceed five lakh rupees in any previous 
year; or * 

(iii) who is required to furnish a return of income 
* under sub-section (4A) of section 139; or 

(iv) being an employer, who is required to furnish a 


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return of fringe benefits under section 115WD. 

and who has not been allotted a permanent account 
number shall, within such time, as may be prescribed, 
apply to the Assessing Officer for the allotment of a 
permanent account number.” 


109) This PAN number has to be mentioned/quoted in number of 

J 

eventualities specified under sub-section (5), (5A), (5B), (5C), 
5(D) and sub-section (6) of Section 139A. These provisions read 
as under: 


“5. Every person shall - 

(a) quote such number in all his returns to, or 
correspondence with, any income-tax authority, 

, * 

(b) quote such number in all chailans for the 
payment of any sum due under this Act; 

(c) quote such number in all documents pertaining 
to such transactions as may be prescribed by 
the Board in the interests of the revenue, and 
entered into by him: 

Provided that the Board may prescribe 
different dates for different transactions or class 
of transactions or for different class of persons. 

Provided further that a person shall quote 
General Iridex Register Number till such time 
Permanent Account Number is allotted to such 

person; 

(d) intimate the Assessing Officer any change in his 
address or in the name and nature of his 
business on the basis of which the permanent 
account number was allotted to him. 

(5A) Every person receiving any sum or income or 

amount from which tax has been deducted under the 

provisions of Chapter XVIIB, shall intimate his 


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Zoo 

permanent account number to the person responsible 
for deducting such tax under that Chapter: 

Provided further that a person referred to in this 
sub-section, shall intimate the General Index Register 
Number till such time permanent account number is 
allotted to such person. 

(5B) Where any sum or income or amount has been 
paid after deducting tax under Chapter XVIIB, every 
person deducting tax under that Chapter shall quote 
the permanent account number of the person to whom 
such sum or income or amount has been paid by him- 

(i) in the statement furnished in accordance with 
the provisions of sub-section (2C) of section 
192; 

(ii) in all, certificates furnished in accordance with 
- the provisions of section 203; 

(iii) in all returns prepared and delivered or caused 
to be delivered in accordance with the 
provisions of section 206 to any income-tax 
authority; 

(iv) in all statements prepared and delivered or 
caused to be delivered in accordance with the 
provisions of sub-section (3) of section 200: 

* 

Provided that the Central Government may, by 
notification in the Official Gazette, specify different 
dates from which the provisions of this sub-section 
shall apply in respect of any class or classes of 
persons: ' 

• 

Provided further that nothing contained in sub-sections 
(5A) and (5B) shall apply in case of a person whose 
’total income is not chargeable to income-tax or who is 
not required to obtain permanent account number 
under any provision of this Act if such person furnishes 
to the person responsible for deducting tax a 
‘ declaration referred to in section 197A in the form and 
manner prescribed thereunder to the effect that the tax 
on his estimated total income of the previous year in 
which such income is to be included in computing his 
total income will be nil. 

t 

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(5C) Every buyer or licensee or lessee referred to in 
section 206C shall intimate his permanent account 
number to the person responsible for collecting tax 
• referred to in that section, 

(5D) Every person collecting tax in accordance with 
the provisions of section 206C shall quote the 
permanent account number of every buyer or licensee 
or lessee referred to in that section — 

(it 'in all certificates furnished in accordance with 
the provisions of sub-section (5) of section 

206C; 

(ii) in all returns prepared and delivered or caus ® d I 

to be delivered in accordance with the 
provisions of sub-section (5A) or sub-sec ion 

(5B) of section 206C to an income-tax authority, 

(iii) in all statements prepared and delivet ;® d ; 

' caused to be delivered in accordance with the 

provisions of sub-section (3) of section 206C. 

(6) Every person receiving any document relating to a 
’ transaction prescribed under clause (c) of sub-sectio 

5) sha ensure that the Permanent Account Number | 

or the General Index Register Number has been duly ; 
quoted in the document. 

m 

i 

HO) Sub-section (8) empowers the Board to make Rules, inter alia, 
prescribing the categories of transactions in relation to which PAN 
is to be quoted. Rule 114B of the Rules lists the nature of 
transaction in sub-rule (a) to (r) thereof where PAN number is to 

be given, 

111) According to the petitioners, it amounts to violating their 
fundamental right to carry on business/profession etc. as 


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enshrined under Article 19(1)(g) of the Constitution which stands | 
infringed and, therefore, it was for the State to show that the _ 
restriction is reasonable and in the interest of pubic under Article , 
19(6) of the Constitution. It is in this context, principle of 
proportionality has been invoked by the petitioners with their , 
submission that restriction is unreasonable as it is utterly , 
. disproportionate'for committing breach of Section 139AA of the . 

Act. I 

112) As noted above, Mr. Datar had relied upon the judgment of this 
Court in Modern Dental College & Research Centre and ^ 
submitted that while applying the test of proportionality, the 
respondents were specifically required to demonstrate the that 
measures undertaken are necessary in that there are no 
alternative measures that may similarly achieve that same 
purpose with a lesser degree of limitation (narrow tailoring) and 
also .that there was proper relation between the importance of 
achieving the proper purpose and the social importance of 
preventing the limitation on the constitutional right, (balancing two 

competing interests). 

113) in order to consider the aforesaid submissions we may bifurcate 


48 Footnote 7 above 


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Section 139AA in two parts, as follows: • ~ 

(i) That portion of the provision which requires quoting of 
Aadhaar number (sub-section(l)) and - requirement of 
intimating Aadhaar.number to the prescribed authorities by 

T 

1 

these who are PAN holders (sub-section (2)). 

(ii) Consequences of failure to intimate Aadhaar number to the 
prescribed authority by specified date. 

114) Insofar as first limb of Section 139AA of the Act is concerned, we 

have already held that it was within the competence of the 

Parliament to make a provision of this nature and further that it is 

* 

not offensive of Article 14 of the.Constitution. This requirement, 
per se, does not find foul with Article 19(1 )(g) of the Constitution 
either, inasmuch as, quoting the Aadhaar number for purposes 
mentioned in sub-section (1) or intimating the Aadhaar number to 
the prescribed authority as per the requirement of sub-section (2) 
does not, by itself, impinge upon the right to carry on profession 
or trade, etc. Therefore.-it is not violative of Article 19(1 )(g) of the 
Constitution either. In fact, that is not even the argument of the 
petitioners. Entire emphasis of the petitioners submissions, while 

addressing the'arguments predicated on Article 19(1 )(q) of ^e 

• * 

Constitution, is on the consequences that ensue in terms of 


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Z©4 

proviso to sub-section (2) inasmuch as it is argued, as recorded 
above, that the consequences provided will have the effect of 

Y 

paralysing the right to carry on business/profession. Therefore, 
thrust is on the second part of Section 139AA of the Act, which we 
proceed to deal with, now. 

115 ) At the outset, it may be mentioned that though PAN is issued 
under the provisions of the Act (Section 139A), its function is not 
limited to giving this number in the income-tax returns or for other 
acts to be performed under the Act, as mentioned in sub-sections 
(5), (5A), (5B), 5(C), 5(D) and 6 of Section 139A. Rule 114B of 
the Rules mandates quoting of this PAN in various other 
documents pertaining to different kinds of transactions listed 
therein. It is for sale and purchase of immovable property valued 
at Rs.5* lakhs or more; sale or purchase of motor vehicle etc., 
while opening deposit account with a sum exceeding Rs.50,000/- 
with a banking company; while making deposit of more than 
Rs.50,000/- in any account with Post Office, savings bank, 
contract of a value exceeding Rs.1 lakh for sale or purchase of 
securities as defined under the Securities Contract (Regulation) 
Act, 1956; while opening an account with a banking company, 
making an' application for installation of a telephone connection; 

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20 $ 

* 

making payment to hotels and restaurants when such payment 
exceeds Rs.25,000/- at any one time; while purchasing bank 
drafts or pay orders for an amount aggregating Rs.50.000/- or 
more during any one day, when payment in cash; payment in 
cash in connection with travel to any foreign country of an amount 
exceeding Rs.25,000/- at any one time; while making payment of 
an amount of Rs.50,000/ f or more to a mutual fund for purchase 
of its units or for acquiring shares or debentures/bonds in a 


company or bonds issued by the Reserve Bank of India; or when 
the transaction of purchase of bullion or jewellery is made by 
making payment in cash to a dealer above a specified amount, 
etc. This shows that for doing many activities of day to day 
nature, including in the course of business, PAN is to be given. 


Pithily put, in the absence of PAN, it will not be possible to 
undertake any of the aforesaid activities though this requirement 
is aimed at curbing the tax evasion. Thus, if the PAN of a person 
is withdrawn or is nullified, it definitely amounts to placing 


restrictions on. the right to do business as a business under Article 
19(1)(g ) of the Act. The question would be as to whether these 
restrictions are reasonable and, therefore, meet the requirement 
of clause (6) of Article 19. In this context, when 'balancing’ is to 
he done, doctrine of proportionality can be applied, which was 


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49 


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v>*> 

explained in the case of Modern Dental College & Research 


Centre 49 , in the following manner: 

“ Doctrine of proportionality expl ained and applie d 


59, Undoubtedly, the right to establish and manage the 
educational institutions is a fundamental right 
recognised under Article 19(1 ){g) of the Act It al 
cannot be denied that this right is hot “absolute and is 
subject to limitations i.e. “reasonable restrictions that 
can be imposed by law on the exercise of the rights 
that are conferred under clause (1) of Article ; ; 19. Those 
restrictions, however, have to be reasonable Further 
such restrictions should be “in the interest of genera 
public", which conditions are stipulated in clause (6) of 
Article IQ a? under: 


“19 (6) Nothing in sub-clause (g) of the said 
clause shall affect the operation of any 
existing law insofar as it imposes, or prevent 
the State from making any law imposing, in 
the interests of the general public, 
reasonable restrictions on the exercise of the 
riqht conferred by the said sub-clause, an , 
in particular, nothing in the said sub-clause 
shall affect the operation of any existing law 
insofar as it relates to, or prevent the State 
from making any law relating to 

m the professional or technical qualifications 
necessary fdr practising any profession or 
carrying on any occupation, trade or 
business, or 


(ii) the carrying on by the sta * e ' or 3 
corporation owned or controlled by the State, 
of any trade, business, industry or service, 
whether to the exclusion, complete or partial, 
of citizens or otherwise.’ 

60. Another significant feature which can be noticed 
from the reading of the aforesaid clause is that the 
State is empowered to make any law relating to the 
pSeslnal or technical qualifications necessary for 


Footnote 7 above 


\A/ri f Petition (Civil) Nq, ?47. of2Q1I£~Q& 


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practising any profession or carrying on any 
occupation or trade or business. Thus, while 
examining as to whether the impugned provisions of 
the statute and rules amount to reasonable restrictions 
and are brought out in the interest of the genera 
'public the exercise that is required to be undertaken 
is the balancing of fundamental right to carry on 
occupation on the one hand and the restrictions ■ 
imposed on the Other hand. This is what is known a s 

“doctrine of proportionality'. Juns P rude f ntla ' y ' 

“oroportionalitf can be defined as the set of, rules 
determining the necessary and sufficient conditions for 
Eaton of a constitutionally protected right by a law 
to be constitutionally permissible. According to Ahar 
Barak (former Chief Justice, Supreme Court of Isra ), 
there are four sub-components of proportionality which 
need to be satisfied [ Aharon Barak, Proport/onaWy. 
Constitutional Rights and The/r Limrtaton(Cambndge 
University Press 2012).], a limitation of a constitutional 
right will be constitutionally permissible if: 

(/) it is designated for a proper purpose, 

Cii) the measures undertaken to effectuate such a 
limitation are rationally connected to the fulfilment of 

that purpose; 

I Hi) the measures undertaken are necessary in that 
him are no alternative measures that may similarly 
. achieve that same purpose with a lesser degree of 
limitation; and finally 

sj? - usj, sz 

the constitutional right. 

61 Modern theory of constitutional rights draws a 
fundamental distinction between thei scope of »h 

L'»". SJi/ShB i. 

Src’rned, i. marks the outer 

«Z£! 

KslSoT'S IwSn, Ka“nTe imposed on 


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such a right. 

62 It is now almost accepted that there are no 
absolute constitutional rights and all such rights ar 
related As per the analysis of Aharon Barak, wo key 
elements in developing the modem const u onal 
theory of recognising positive constitutions 9 
along 7 with its limitations are the notions of democracy 
and the rule of law. Thus, the requirement of 
proportional limitations of constitutional rights by a 
sub-constitutional law'i.e. the statute, is denved 
an interpretation of the notion of democracy itself. 
Insofar as the Indian Constitution is concerned, 
democracy is treated as the basic feature of the 
Constitution and is specifically ^corded a 
constitutional status that is recognised the i PrewMB 
of the Constitution itself. It is also unerringly acceptea 
that this notion of democracy includes human rights 
which is the cornerstone of Indian democracy, 
we accept the aforesaid theory (and there cannot 
rnVdenial thereof), as a fortiori, It has also to be 
accented that democracy is based on a b 
between constitutional rights and the pub ic interests^ 
Sc, such a provision in Article ,8 ils.l on theon. 
hand quarantees-some certain freedoms in clause ( ) 

con^tituUonartheor^that^he 

* . Th : c rplativitv means that a consuiuuuna. 

Esr-vsTo tsr £« 

[he inherent tension between democracy s two 

peo^ement JmiUng those very rights through then-. 

a proper balancing -of the competing pnrog*-1 of 
one of the expressions of the multi tacexeo 


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democracy. Indeed, the inherent tension between 
democracy's different facets is a “constructive 
tension”. It enables each facet to develop while 
harmoniously coexisting with the others. The best way 
to achieve this peaceful . coexistence ’ is through 
balancing between the competing interests. Such 
balancing enables each facet to develop alongside the 
other facets, not in their place. This tension between 
the two fundamental aspects—rights on the one hand 
and its limitation on the other hand—is to be resolved 
by balancing the two so that they harmoniously ■coexist 
with each other. This balancing is to be done keeping 
in mind the relative social values of each competitive 
aspects when considered in proper context. 


63 In this direction, the next question that arises is as 
to what criteria is to be adopted for a proper balance 
between the two facets viz. the rights and limitations 
imposed upon it by a statute. Here comes the concept 
of "proportionality”, which is a proper criterion To put it 
pithily, when a law limits a constitutional right, such a 
limitation is constitutional if it is proportional The law 
imposing restrictions will be treated as proportional if 
is meant to achieve a proper purpose, and if the 
measures taken to achieve such a purpose are 
rationally connected to the purpose, and such 
measures are necessary. This essence of doctrine of 
proportionality is beautifully captured by Dickson C.J. 
of Canada in R. v. Oakes, in the following words (at p. 

- 138): 

“To establish that a limit is reasonable and 
demonstrably justified in a free and 
democratic society, two central criteria mus 
-be satisfied. First, the objective, which the 
measures, responsible for 'a limit on a 
Charter right or freedom are designed to 
serve, must be “of sufficient importance to 
warrant overriding a constitutional protected 
riqht or freedom ... Second ... the party 
invoking Section 1 must show that the means 
. chosen are reasonable and demonstrably 
justified. This involves “a form of 
proportionality test..." Although the nature of 
the proportionality test will vary depending on 
the circumstances, in each case courts wi 
be required to balance the interests of 

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a to 

society with’.those of individuals and groups. 
There are, in my view, three important 
components of a proportionality test. First, 
the measures adopted must be ... rationally 
connected to the objective. Second, the 
means ... should impair “as little as possible" 
the right or freedom in question ... Third, 
there must be a proportionality between the 
effects of the measures which are 
responsible for limiting the Charter right or 
freedom, and the objective which has been 
identified as of “sufficient importance . The 
more severe the deleterious effects of a 
measure, the more important the objective 
must be if the measure is to be reasonable 
•and demonstrably justified in a free and 
democratic society.’ 1 


64. The exercise which, therefore, is to be taken is to 
find out as to whether the limitation of constitutional 
rights is for a purpose that is reasonable and 
necessary in a democratic society and such an 
exercise involves the weighing up of competitive 
values, and ultimately an assessment based on 
proportionality i.e. balancing of different interests. 


65 We may unhesitatingly remark that this doctrine of 
proportionality, explained hereinabove in brief, is 
enshrined in Article 19 itself when we read clause (1) 
along with clause (6) thereof. While defining as to 
what constitutes a reasonable restriction, this Court in 
a plethora of judgments has held that the expression 
“reasonable restriction” seeks to strike a balance 
between the freedom guaranteed by any of the 
sub-clauses of clause (1) of Article 19 and the social 
control permitted by any pf the clauses (2) to (6). t is 
held that the expression “reasonable” connotes that 
the limitation imposed on a person in the enjoyment of 
the right should nojt be arbitrary or of an excessive 
nature beyond what is required in the interests of 
public. Further, in order to be reasonable, he 
restriction must have a reasonable relation to the 
object which the legislation seeks to achieve, and 
must not go in excess of that object (see P.P. 
Enterprises v. Union of India [P.P. Enterprises v. Union 
of India, (1982) 2 SCC 33). At the same time 
reasonableness pf a restriction has to be determined 


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in an objective manner and from the standpoint of the 
interests of the general public and not from the point of 
view of the persons upon whom the restrictions are 

imposed or upon abstract consi ^®''? ti °^ s c j s |® 

Hanif Quareshi v. State of Blhar ^’Ll® 5 ® <?f r 7 ?77 
InM.R.F. Ltd. v. State of Kerala, (1998) 8 .SCC 227, 
this Court held that in examining the reasonableness 
of a statutory provision one has to keep in mind the 
fnllnwina factors; 


(1) The directive principles of State policy. , . 

(2) Restrictions must not be arbitrary or of an 
excessive nature so as to go beyond the requirement 
of the interest of the general public. 


(3) In order to judge the reasonableness of the 
restrictions, no abstract or general pattern f or a f « ed 
principle can be laid down so as to be of universal 
application and the same will vary from case to case 
as also with regard to changing conditions, values of 
human life, social philosophy of the Constitution, 
prevailing conditions and the surrounding 


(4) A just balance has to be struck between the 
restrictions imposed and the social control envisaged 
by Article 19(6). 

(5) Prevailing social values as also social needs which 
are intended to be satisfied by the restrictions. 


(6) There must be a direct and proximate nexus or 
reasonable connection between the restricMon 
imposed and the object sought to be achieved. If th 
is a direct nexus between the restrictions, and th 
object of the Act, then a strong presumption in favour 
„r Lo constitutionality of the Act will naturally arise. 


116) Keeping in view the aforesaid parameters and principles in mind, 
we proceed to discuss as to whether the ‘restrictions' which would 
result in terms of proviso to sub-section (2) of Section 139AA of 


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the Act are reasonable or not. 

117) Let us revisit the objectives of Aadhaar, and in the process, that of 
Section 139AAin particular. 

118) ; By making use of the technology, a method is sought to be 

devised, in the form of Aadhaar, whereby identity of a person is 
ascertained in a flawless mariner without giving any leeway to 
any individual to resort to dubious practices of showing multiple 
identities or fictitious identities. That is why it is given the 
nomenclature 'unique identity'. It is aimed at securing 

advantages on different levels some of which are described, in 

< , 
brief, below: 

(i) In the first instance, as a welfare and democratic State, it 

becomes the duty of any responsible Government to come out 
* 

with welfare schemes for the upliftment of poverty stricken and 
marginalised sections of the society. This is even the ethos of 
Indian Constitution which casts a duty on the State, in the form of 
'Directive Principles of State Policy’, to take adequate and 

effective steps for betterment of such underprivileged classes. 

* 

State is bound to take adequate measures to provide education, 
health care, employment and even cultural opportunities and 
social standing to these deprived and underprivileged classes. It 


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is not that Government has not taken steps in this direction from 
time to time. At the same time, however, harsh reality is that 
benefits of these schemes have not reached those persons for 

whom that are actually meant 

India has achieved significant, economic growth since 

j 

independence: In particular, rapid economic growth has been 
achieved in the last 25 years, after the country adopted the policy 
of liberalisation and entered the era of, what is known as, 


globalisation. Economic growth in the last decade has been 

phenomenal and for many years, the Indian economy grew at 

highest rate in the world. At the same tifrie, it is also a fact that in 

spite of significant political and economic success which has 

proved to be sound and sustainable, the benefits thereof have not 

percolated down to the po'or and the poorest. In fact, such 

benefits are reaped primarily by rich and upper middle classes, 

resulting into widening the gap between the rich and the poor. 

Jean Dreze & Amartya Sen eithly narrate the position as under 50 . 

“Since India’s recent record of fast economic growth is 
often celebrated, with good reason, it is extremely 
important to point to the fact that the societal reach of 
economic progress in India has been remarkably 
limited. It is not only that the income distribution has 
been getting more unequal in recent years (a 
characteristic th$t India shares with China), but also 
that the rapid ride in real wages in China from which 
the working classes have benefited greatly is not 

An Uncertain Glory : India and its Contradictions 


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matched at ail by India's relatively stagnant real 
wages. No less importantly, the public revenue 
generated by rapid economic growth has not been 
used to expand the social and physical infrastructure 
in a determined .and well-planned way (in this India is 
left far behind hy China). There is also a continued 
lack of essential social 'services (from schooling and 
health care to the provision of safe water and 
drainage) for a huge part of the population. As we will 
presently discuss, while India has been overtaking 
other countries in the progress of its real income, it 
has been overtaken in terms of social indicators by 
many of these countries, even within the region of 
South Asia itself (we go into this question more fully in 
Chapter 3, ‘India in Comparative Perspective'). 

To point to just one contrast, even though India has 
significantly caught up with China in terms of GDP 
growth, its progress has been very much slower than. 

China’s in indicators such as longevity, literacy, child 
undernourishment and maternal mortality. In South 
Asia itself, the much poorer economy of Bangladesh 
has caught up with and overtaken India in terms of 
many social indicators (including life expectancy, 
immunization of children, infant mortality, child 
undernourishment and girls’ schooling). Even Nepal 
has been catching up, to the extent that it now has 
many social indicators similar to India s, in spite of its 
per capita GDP being just about one third. Whereas 
twenty years ago India generally had the second-best 
social indicators among the six South Asia countries 
(India, Pakistan, Bangladesh, Sri Lanka, Nepal and 
Bhutan), it now looks second worst (ahead only of 
problem-ridden Pakistan). India has been climbing up 
the ladder of per capita income while slipping down 
the slope of social indicators.” 

It is in this context that not only sustainable development is 
needed which takes care of integrating growth and development, 
thereby ensuring that the benefit of economic growth is reaped by 
every citizen of this country, it also becomes the duty of the 
Government in a welfare State to come out with various welfare 


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schemes which not only take care of immediate needs of the 
deprived class but also ensure that adequate opportunities are 
provided to such persons to enable them to make their lives 
better, economically as well as socially. As mentioned above, 
various welfare schemes are, in fact, devised and floated from 

i 

time to time by the Government, keeping aside substantial 
amount of money earmarked for spending on socially and 
economically backward classes. However, for various reasons 
including corruption, actual benefit does not reach those who are 
supposed to receive such benefits. One of the main reasons is 
failure to identify these persons for lack of means by which 
identity could be established of such genuine needy class. 
Respltantly, tots of ghosts and duplicate beneficiaries are able to 
take undue and impermissible benefits. A former Prime Minister 
of this country 5 ' has gone to record to say that out of one rupee 
spent by the Government for welfare of the downtrodden, only 15 
i paisa thereof actually reaches those persons for whom it is 
meant. It cannot be dodbted'that with UID/Aadhaar much of the 
malaise in this field can be taken care of. 

(jj) Menace of corruption and black money has reached 
alarming proportion in this country. It is eating into the economic 


51 Late Shri Rajiv Gandhi 

t 

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progress which the country is otherwise achieving. It is not 
necessary to go into the various reasons for this menace. 

r 

However, it would be pertinent to comment that even as per the 
observations of the Special Investigation Team (SIT) on black 
money headed by Justice M.B. Shah, one of the reasons is that 
persons have the option to quote their PAN or UID or passport 

1 i 

number or driving licence or any other proof of identity while 
entering into financial/business-transactions. Because of this 
multiple methods of giving proofs of identity, there is no 

mechanism/system at present to collect the data available with 

* 

each of the independent proofs of ID, For this reason, even SIT 
suggested that these databases be interconnected. To the same 
effect is the recommendation of the Committee headed by 
Chairman, CBDT on measures to tackle black money in India and 

m 

abroad which also discusses the problem of money-laundering 
being done to evade taxes under the garb of shell companies by 

* t 

the persons Who ‘hold multiple bogus PAN numbers under 
different names or' variations of their names. That can be 
possible if one uniform proof of identity, namely, UID is adopted. 
It may go a long way to check and minimise the said malaise. 

(iii) Thirdly, Aadhaar or UID, which has come to be known as 


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most advanced and sophisticated infrastructure, may facilitate law 
enforcement agencies to take care of problem of terrorism to 
some extent and may also be helpful in checking the crime and 
also help investigating agencies in cracking the crimes. No 
doubt, going by aforesaid, and may be some other similarly valid 
considerations, it is the intention of the Government to give phillip 
to Aadhaar movement and encourage the people of this country 
to enroll themselves under the Aadhaar scheme. 

119) Wether such a scheme should remain voluntary or it can be made 

t 

mandatory imposing compulsiveness on the people to be covered 
by Aadhaar is a different question which shall be addressed at the 
appropriate stage. At this juncture, it is only emphasised that 
malafides cannot be attributed to this scheme. In any case, we 
are cdncerned with the yires of Section 139AAof the Income Tax 
Act, 1961 which is a statutory provision. This Court is, thus, 
dealing with the aspect of judicial review of legislation. Insofar as 
this provision is concerned, the explanation of the respondents in 
the counter affidavit, which has already been reproduced above, 
is that the primary purpose of introducing this provision was to 
take care of the problem of multiple PAN cards obtained in 
fictitious names. Such multiple cards in fictitious names are 


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obtained with the motive of indulging into money laundering, tax 

evasron, creation and channelising of black money. !t is 

mentioned that in a de-duplication exercises, 11.35 lakhs cases of 

* 

duplicate PANs/fraudulent PANs have been detected. Out of 
these, around 10.52 lakhs pertain to individual assessees. 
Parliament in its wisdom thought that one PAN to one person can 

be ensured by adopting Aadhaar’for allottment of PAN to 

* 

* 

individuals. As of today, that is the only method available i.e. by 
seeding of existing PAN with Aadhaar. It is perceived as the best 
method, and the only robust method of de-duplication of PAN 
database. It is claimed by the respondents that the instance of 
duplicate Aadhaar is almost non-existent. It is also claimed that 

seeding of PAN with Aadhaar may contribute to widening of the 

• ■ ‘ 

tax case as well, by checking the tax evasions and bringing in to 
tax hold those persons who are liable to pay tax but deliberately 
avoid doing so. It would be apposite to quote the following 
discussion by the Comptroller and Auditor General in its report for 
the year 2011: 

“Widening of Tax Base 

The assessee base grew over the last five years from 

297.9 lakh taxpayers in 2005-06 to 340.9 lakh 

taxpayers in 2009-10 at the rate of 14.4 per cent. 

« 

The Department has different mechanisms available to 
enhance the assessee base which include inspection 


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2 '» 

and survey, information sharing with other tax 
departments and third party information available in 
annual information returns. Automation also facilitates 
greater cross linking. Most of these mechanisms are 
available at the level of assessing officers. The 
Department needs to holistically harness these 
mechanisms at macro level to analyse the gaps in the 
assessee base. Permanent Account Numbers (PANs) 
issued upto March 2009 and March 2010' were 807.9 
lakh and 958 lakh respectively. The returns filled in 
2008-09 and 2009-10 were 326.5 lakh and 340.9 lakh 
respectively. The gap between PANs and the number 
of returns filed was 617.1 lakh in 2009-10. The Board 
needs to identify the reasons for the gap and use this 
information for appropriately enhancing the assessee 
base. The gap may be due to issuance of 
duplicate PAN cards and death of some PAN card 
holders. The Department needs to put in place 
appropriate controls to weed out the duplicate 
PANs and also update the position in respect of 
deceased assessee. It is significant to note that 
the number of PAN card holders has increased by 
117.7 per cent between 2005-06 to 2009-10 
whereas the nu-mber of returns filed in the same 
period has increasedby 14.4 per cent only. 

(emphasis supplied) 

The total direct tax collection has increased by 128.8 
* per cent during the period 2005-06 to 2009-10. The 
increase in the tax collection was around nine times as 
compared to increase in the assessee base. It should 
be the constant endeavour of the Department to 
ensure, that the entire assessee base, once correctly 
identified is duly meeting the entire tax liability. 
However, no assurance could be obtained that the tax 
liability on the assessee is being assessed and 
collected properly. This comment is corroborated in 
para 2A1 of Chapter 2 of this report where we have 
mentioned about our detection of under charge of tax 
amouting to Rs. 12,842.7 crore in 19,230 cases 
audited during 2008-09. However, given the fact that 
ours is a test audit, Department needs to take firm 
steps towards strengthening the controls available on 
the existing statutes towards deriving an assurance on 
the tax collections." 


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120) Likewise, the Finance Minister in his Budget speech in February, 

2013 described the extent of tax evasion and offering lesser 

income tax than what is actually due thereby labelling India as tax. 

known compliance, with the following'figures: 

"India’s tax to GDP ratio is very law, and the proportion 
of direct tax to indirect tax is not optional from the view 
point of social justice. I place before you certain data 
to indicate that our direct tax collection is not 
commensurate, with the income and consumption 
pattern of Indian economy. As against estimated 4.2 
crore persons engaged in organized sector 
employment, the number of individuals filing return for 
salary income are only 1.74 crore. As against 5.6 
crore informal sector individual enterprises and firms 
doing small business in India, the number of returns 
filed by this category are only 1.81 crore. Out of the 
13.94 lakh companies registered in India up to 31th 
March, 2014, 5.97 lakh companies have filed their 
returns for Assessment Year 2016-17. Of the 5.97 lakh 
companies which have filed their returns for 
Assessment Year 2016-17 so far, as many as 2.76 
lakh companies have shown losses or zero income. 

2.85 lakh companies have shown profit before tax of 
less than Rs, 1 crore. 28,667 companies have shown 
* profit between Rs. 1 crore to Rs. 10 crore, and only 
7781 companies have profit before tax of more than 
Rs.10 crores. Among the 3.7 crore individuals who . 
filed the tax returns in 2015-16, 99 lakh show income 
below the exemption limit of Rs.'2.5 Lakh p.a. 1.95 
crore show income between Rs. 2.5 to Rs 5 lakh, 52 
lakh show income between Rs. 5 to Rs. 10 lakhs and 
only 24 lakh people show income above Rs. 10 lakhs. 

Of the 76 lakhs individual assesses who declare 
income above Rs. 5 lakhs, 56 lakhs are in the salaried 
class. The number of people showing income more 
than 50 lakhs in the entire country is only 1.72 lakh. 

We can contrast this with the fact that in the last five 
years, more than 1.25 crore cars have been sold, and 
number of Indian citizens who flew abroad, either for 
business or tourism, is 2 crore in the year 2015. From 
all these figures we can conclude that we are largely a 
tax non-compliant society. The predominance of the 


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• V ■ 

cash in the economy.makes it possible for the people 
to evade their taxes. When too many people evade 
the taxes, the burden of their share falls on those who 
are honest and complaint.” 

121) The respondents have also claimed that linking of Aadhaar with 

PAN is consistent with India's international obligations and goals, 

In this behalf, it is pointed out that India has signed the 

Inter-Governmental Agreement (IGA) with the USA on July 9, 

2015, for Improving ; International Tax Compliance and 

1 

implementing the Foreign Account Tax Compliance Act (FATCA). 
India has also signed a multilateral agreement on June 3, 2015, 
to automatically exchange information based on Article 6 of the 
Convention on Mutual Administrative Assistance in Tax Matters 
under the Common Reporting Scheme (CRS), formally referred to 
as the Standard for Automatic Exchange of Financial Account 
Information (AEol). As part of India's commitment under FATCA 
and CRS, financial sector entities capture the details about the 
customers using the PAN. In case the PAN or submitted details 
are found to be incorrect or fictitious, it will create major 
embarrassment for the country. Under Non-filers Monitoring 
System (NMS), Income Tax Department identifies non-filers with 
potential tax liabilities. Data analysis is carried out to identify 
non-filers about whom specific information was available in AIR, 


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2 . 22 . 

CIB data and TDS/TCS Returns. Email/SMS and letters are sent 

t * 

to the identified non-filers communicating the information 

summary and seeking to know the submission details of Income 

tax return. In a large'number of cases (more than 10 lac PAN 

every year) it is seen that the PAN holder neither submits the 

response and in many cases the letters are return unserved. 

Field verification, by fields formations have found that in a large 

♦ 

* i 

number of cases, the PAN holder is untraceable. In many cases, 
the PAN holder mentions that the transaction does not relate to 
them. There is a need to strengthen PAN by linking it with 
Aadhaar/biometric information to prevent use of wrong PAN for 
high value transactions. 

122) While considering the aforesaid submission of the petitioners, one 

■r 

has to keep in mind the aforesaid purpose of the impugned 

provision and what it seeks to achieve. The provision is aimed at 
• « 

seeding Aadhaar with PAN, We have already held, while 
considering the submission based on Article 14 of the 
Constitution, that the provision is based on reasonable 
classification and that has nexus with the objective sought to be 
achieved. One of the main objectives is to de-duplicate PAN 
cards and to bring a situation where one person,, is not having 


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more than one PAN card or a person is not able to get PAN cards 
in assumed/fictitious names. In such a scenario, if those persons 
who violate Section 139AA of the Act without any consequence, 
the provision shall be rendered toothless. It is the prerogative of 
the Legislature to make .penal provisions for violation of any law 
made by it. In the instant case, requirement of giving Aadhaar 
enrolment number to the designated authority or stating this 
number in the income tax returns is directly connected with the 

issue of duplicate/fake PANs. 


123) At this juncture, we will also like to quote the following passages 

from the nine Judge Bench judgment of this Court in Jindal 

1 

Stainless Ltd. 5 \ which discussion though is in different context, 

will have some relevance to the issue at hand as well. 

“109 It was next argued on behalf of the dealers that 
an unreasonably high rate of tax could by itself 
constitute a restriction offensive to Article 301 of the 
Constitution. This was according to learned counsel 
for the dealers acknowledged even in the minority 
judgment delivered by Sinha, CJ in Atiabari's 
case (supra). If that be so, the only way such a 
restriction could meet the constitutional requirements 
would be through the medium of the proviso to Article 
304(b) of the Constitution. There is, in our opinion, no 
merit in that contention either and we say so for two 
precise reasons. Firstly, because taxes whether high 
or low do not constitute restrictions on the freedom of 
trade and commerce. We have held so in the previous 
paragraphs of the judgment based on our textual 
understanding of the provisions of Part XII! which is 
matched by the contextual interpretation. That being 


52 Footnote 40 abovQ 


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so the mere fact that a tax casts a heavy burden is no 
reason for holding that it is a restriction on the freedom 
of trade and commerce. Any such excessive tax 
burden may be open to challenge under Part III of the 
Constitution but the extent of burden would not by 
itself justify the levy being struck down as a restriction 
contrary .to Article 301 of the Constitution. 

4 i 

110. Secondly because, levy of taxes is both an 
attribute of sovereignty and an unavoidable necessity. 
No responsible government can do without levying 
and collecting taxes for it is only through taxes that 
governments are run and objectives of general public 
good achieved. The conceptual or juristic basis 
underlying the need for taxation has not, therefore, 
been disputed by learned counsel for the dealers and, 
in our opinion, rightly so. That taxation is essential for 
fulfilling the needs of the government is even 
otherwise well-settled. A reference to “A Treatise on 
the Constitutional Limitations" (8 th Edn. 1927 - Vo'l. II 
Page 986) by Thomas M Cooley brings home the point 
with commendable clarity. Dealing with power of 
taxation Cooley says: 

"Taxes are defined to be burdens or charges 
imposed by the legislative power upon 
persons or property, to raise money for public 
purposes. The power to tax rests upon 
necessity, and is inherent in every 
sovereignty. The legislature of every free 
State will possess it under the general grant 
of legislative power, whether particularly 
specified in the constitution among the 
powers to be exercised by it or not. No 
constitutional government can exist without 
it, and no arbitrary government without 
regular and steady taxation could be 
anything but an oppressive and vexatious 
despotism, since the only alternative to 
taxation would be a forced extortion for the 
needs of government from such persons or 
objects as thye men in power might select as 
victims." ’ 

111. Reference may also be made to the following 
passage appearing in McCulloch v. Maryland, 17 US 
316 (1819) where Chief Justice Marshall recognized 




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the power of taxation and pointed out that the only 
security against the abuse of such power lies in the 
structure of the government itself. The court said; 


“43. ..It is admitted that the power of taxing 
the people and their property is essential to 
the very existence of government, and may 
be legitimately exercised on the objects to 
which it is applicable to the utmost extent to 
which the government may choose to carry 
it. The only security against the abuse of this 
power is found in the structure of the 
■government itself. In imposing a tax, the 
legislature acts upon its constituents. This is, 
in general, a sufficient security against 
erroneous and oppressive taxation. 


* 

44. The people of a State, therefore, give to 
their government a right of taxing themselves 
and their property; and as the exigencies of 
the government cahnot be limited, they 
prescribe no limits to the exercise of this 
right, resting confidently on the interest of the 
legislator, and on the influence of the 
constituents over their .representative, to 
guard them against its abuse.” 


112. To the same effect is the decision of this Court 
instate of Madras v. N.K. Nataraja Mudaliar(AIR 
1969 SC 147) where this Court recognized that 
political and economic forces would operate against 
the levy of an unduly high rate of tax. The Court said: 


"16.... Again, in a democratic constitution 
political forces would operate against the 
levy of an unduly high rate of tax. The rate of 
tax on sales of a commodity may not 
ordinarily be based on arbitrary 
considerations, but in the light of the facility 
of trade* in a particular commodity, the market 
conditions internal and external - and the 
likelihood of consumers not being scared 
away by the price which includes a high rate 
of tax. Attention must also be directed 
sub-Section (5) of Section 8 which authorizes 
the State Government, notwithstanding 
anything contained in Section 8, in the public 


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interest to waive tax or impose tax on sales 
at a lower rate on inter-State trade or 
commerce. It is clear that the legislature has 
contemplated that elasticity of rates 
consistent with economic forces is clearly 
intended to be maintained." 


124) Therefore, it cannot be denied that there has to be some 

provision stating the consequences for not complying with the 

requirements of Section 139AA of the Act, more particularly when 

these requirements are found as not violative of Articles 14 and 

* 

19 (of course, eschewing the discussion on Article 21 herein for 
► 9 

the reasons already given). If Aadhar number is not given, the 
aforesaid exercise may not be possible. 

125) Having said so, it becomes clear from the aforesaid discussion 
that’those who are not PAN holders, while applying for PAN, they 
are required to give Aadhaar number. This is the stipulation of 
sub-section (1) of Section 139AA, which we have already upheld. 
At the same time, as far as existing PAN holders are concerned, 

r 

since the impugned provisions are yet to be considered on the 
touchstone of Article 21 of the Constitution, including on the 
debate around Right to Privacy and human dignity, etc. as limbs 
of Article 21, we are of the opinion that till the aforesaid aspect of 
Article 21 is decided by the Constitution Bench a partial stay of 
the aforesaid proviso is necessary. Those who have already 


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enrolled themselves under Aadhaar scheme would comply with 
the requirement of sub-section (2) of Section 139AA of the Act. 
Those who still want to enrol are free to do so. However, those 
assessees who are not Aadhaar card holders and do not comply 
with the provision of Section 139(2), their PAN cards be not 

f 

treated as invalid for the time being. It is only to facilitate other 

transactions which are mentioned in Rule 114B of the Rules. We 

are adopting this course of'action for more than one reason. We 

are saying so because of very severe consequences that entail in 

♦ 

not adhering 4o the requirement of sub-section (2) of Section 
139AA of the Act. A person who is holder of PAN and if his PAN. 
is invalidated, he is bound to suffer immensely in his day to day 
dealings, which situation should be avoided till the Constitution 
Bench authoritatively determines the argument of Article 21 of the 
Constitution. Since we are adopting this course of action, in the 
interregnum, it would be permissible for the Parliament to 
consider as to whether there is a need to tone down the effect of 

the said proviso by limiting the consequences. 

126) However, at the same time, we find that proviso to Section 
139AA(2) cannot be read retrospectively. If failure to intimate the 
Aadhaar number renders PAN void ab initio with the deeming 
provision that the PAN allotted would be invalid as if the person 


Writ Petition (Civil) No , ?47 OL 2017 & O rs < 


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WWW.LTVELAW.IN 


had not applied for allotment of PAN would have rippling effect of 
unsettling settled rights of the parties. It has the effect of undoing 
all the acts done by a person on the basis of such a PAN. It may 
have even the effect of incurring other penal consequences under 

the Act for earlier period on the ground that there was no PAN 

• * 

registration by a particular assessee. The rights which are 

ft 

already accrued to a person in law cannot be taken away. 
Therefore, this provision needs to be read down by making it 

clear, that it would operate prospectively. 

127) Before we part with, few comments are needed, as we feel that 

these are absolutely essential: 

(i) Validity of Aadhaar, whether it is under the Aadhaar scheme 
or th e Aadhaar Act, is already under challenge on the touchstone 

p 

of Article 21 of the Constitution. Various facets of Article 21 are 
** 

pressed into service. First and foremost is that it violates Right to 
Privacy and Right to Privacy is part of Article 21 of the 
Constitution. Secondly, it is also argued that it violates human 
dignity which is another aspect of Article 21 of the Constitution. 
Since the said matter has already been referred to the 
Constitution Bench, wq have consciously avoided discussion, 
though submissions in this behalf have been taken note of. We 
feel that all the aspect of Article 21 needs to be dealt with by the 


Writ Petition ( Civ il) Nq, 247 . Qf. 2Q17 & Q . CS * 


Page 151 







WWW.LIVELAW.IN 


HZ 

Constitution Bench. That is a reason we have deliberately 

refrained from entering into the said arena. 

♦ 

* 

(ii) it was submitted by the counsel for the petitioners 
themselves that they would be- confining their challenge to the 
impugned, provision on Articles 14 and 19 of the Constitution as 
well as competence of the Legislature, while addressing the 
arguments, other facets of Article 21 of the Constitution were also 
touched upon. Since we are holding that Section 139AA of the 
income Tax Act is not violative of Articles 14 and 19(1 )(g) of the 
Constitution and also that there was no impediment in the way of 
Parliament to insert such a statutory provision (subject to reading 
down the proviso to sub-section (2) of Section 139AA of the Act 
as given above), we make it clear that the impugned provision 
has passed the muster of Articles 14 and. 19(1 )(g) of the 
Constitution. However, more stringent test as to whether this 
statutory provision violates Article 21 or not is yet to be qualified. 
Therefore, we make it clear that Constitutional validity of this 
provision is upheld subject to the outcqme of batch of petitions 
referred to the Constitution Bench where the said issue is to be 
examined. 

(iii) It js also necessary Jo highlight that a large section of 
citizens feel concerned about possible data leak, even when 


Writ Petition lCivil ) No. 247 of 2017 & Ors. 


Page 152 




WWW.LIVELAW.IN 

Xl° 

many of those support linkage of PAN with Aadhaar. This is a 

concern which needs to-be addressed by the Government. It is 

* 

important that the aforesaid apprehensions are assuaged by 
• ♦ 

taking proper measures so that confidence is instilled among the 
public at large that there is no chance of unauthorised leakage of 
data* whether it is done by tightening the operations of the 
contractors who- are given the job of enrollment, they being 
private persons or by prescribing severe penalties to those who 
are found guilty of leaking the details, is the outlook of the 
Government. However l we emphasise that measures in this 

9 

behalf are absolutely essential and it would be in the fitness of 
things that proper scheme in this behalf is devised at the earliest. 

128) Subject to the aforesaid, these writ petitions are disposed of in 
the following manner: 

(i) ,We hold that the Parliament was fully competent to enact 
Section 139AA of the Act and its authority to make this law 

i 

9 

was not diluted by the orders of this Court. 

(jj) We do. not find any conflict between the provisions of 
Aadhaar Act and Section 139AA of the Income Tax Act 
inasmuch as when interpreted harmoniously, they operate 
in distinct fields. 


Writ Petition (Civil) No. 247 of 2017 & Prs. 


Page 153 





WWW.LIVELAW.IN 


2 *\ 

(iii) Section 139AA of the Act is' not discriminatory nor it offends 
equality clause enshrined in Article 14 of the Constitution, 

(iv) Section 139AA is also not violative of Article 19(1 )(g) of the 

✓ 

Constitution insofar as it mandates giving of Aadhaar 
' enrollment number for applying PAN cards in the income tax 
returns or notified Aadhaar enrollment number to the 
designated authorities. Further, proviso to sub-section (2) 
thereof has to be read down to mean that it would operate 
only prospective. 

♦ 

(v) The validity of the provision upheld in the aforesaid manner 
is subject to passing the muster of Article 21 of the 
Constitution, which is the issue before the Constitution 
Bench in Writ Petition (Civil) No. 494 of 2012 and other 
connected matters. Till then, there shall remain a partial 
stay on the operation of proviso to sub-section (2) of 
Section 139AA of the Act, as described above. 

No costs. 

..J. 

(A.K. SIKRI) 

.J. 

(ASHOK BHUSHAN) 

NEW DELHI; 

JUNE 09, 2017. 


Writ Petition (Civil) No. 247 of 2017 & Ors. 


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ITEM NO.5 COURT NO.4 

(For judgment) 

SUPREME COURT OF IN 
• RECORD OF PROCEEDINGS 

WRIT PETITION(C)247 OF 2017 


BINOY VISWAM 


VERSUS 


UNION OF INDIA & ORS. ; 

) 


With 

WP (C)No.277/2017 
WP(C)No,304/2017 

Date : 09/06/2017 These petitions were called on 

For Petitioner (s) Mr.Salman Khurshid, Sr.Adv. 

Mr.Vishnu Shankar Jain, Adv. 
Mr.Deepak Joshi, Adv. 

Mr.I.K.M.Mairom, Adv. 

Mr.Sriram P., Adv. 

* Mr.Pratap Venugopal, Adv. 

Ms.Surekha Raman, Adv. 

Mr.Udayaditya Banerjee, Adv. 
Mr.Prasanna S., Adv. 

Ms .Niharika, Adv. 
Ms.Sameeksha G., Adv. 
Mr.Apaar Gupta, Adv. 

For M/s K.J.John & Co,, Adv 

' Mr.Anando MukKerjee, Adv. 


For Respondent(s) 


Ms.Sadhna Sandhu, Adv. 
Ms.Rashmi Malhotra, Adv. 
Mfc .Zoheb Hossain, Adv. 
Mr.Arghya Sengupta, Adv. 
Ms.Ranjeeta Rohatgi, Adv. 
Mr,Ritesh Kumar, Adv. 

Mr,Abhinav Mukherji, Adv. 
Mr.Saurabh 'Kirpal, Adv. 
Mr.A.Gulati, Adv. 

Ms,Anil Katiyar, Adv. 


Writ Petition (Civil) N o- 247 of 1017 & Q C&. 


SECTION - X 

D I A 

Petitioner(s) 

i 

Respondent(s) 

for judgment today• 


Page /55 





m 

Hon'ble Mr. Justice A.K.Sikri pronounced the Went of the 

. i - His Lordship and Hon'ble Mr. Justice Ashok Bhushan. 
Bench comprising His P following 

These writ petitions are disposed of 

7 


manner: 


(i) 


Court. 


uu ....««- ™ r"5»\xr:< s ssi^s: 

of UM< ;■« o„l,. they 

1 Act inasmuch as when rnte p 

operate in , i s not discriminatory nor 

(lll) ^offends equality clause enshrined in Article 14 

, M T 

19(1) (g) ° f the Constitu nulnber for applying 

giving Of Aadhaar enro fcax ret urns or notified 

« »iS»« “i,. d "‘rs? 

ssrs: .K srs — « « — 

opot.te only pto.pet“~- i;im „ ph ,ld it the 
The validity of t P passing the muster 

aforesaid ^stitution, which is the 

of Article Constitution Bench in Writ 

issue before e 494 of 2012 and other 

Petition (Civil) N • there shall remain a 

connected matters, * operation of proviso to 

partial stay ° • , 139 AA of the Act, as 

sub-section (2) of Section 139AA 

described above. 

No costs, 

(H.S.PARASHER) 

VTISH KUMAR YADAV) COURT MASTER 

AR-CUM-PS , t is placed on the file) 

(Signed reportable judgment is piac 


(v) 


1 / 1 /wf Patuisa is m<Jjo^LaiJ01Z&^ 

H 


page 156 










234 


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REGD, NO. D. L.-3 3004/99 



STTTTRT 

extraordinary 

'itjtt n—.T3US 3—TT-imr (i) 
part II—Section 3— Sub-section (i) 

TUfycRIT ft Wf^TrT 
PUBLISHED BY AUTHORITY 


V. soft I 
No. K061 


Ihc#, ttPthtt; ferr^rr 21, 20 i 5 / 3 Tir^nm 30, 1937 

N E\Y DEL H1, M 0 N DA Y, DEC E IYI nfe R 21,201 S/AGRAH A YAN A 30, 1937 


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THE GAZETTE OF INDIA : EXTRAORDINARY 


[Part II— Sec. 3<i)] 


MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY 
(Department of Electronic and Information Technology) 

(UNIQUE IDENTIFICATION AUHORITY OF INDIA) 

* 4 

NOTIFICATION 

New Delhi.-the ! 1 th December, 2015 

G.S.R. 993(E).— In exercise of the powers conferred by sub-section (1) of Section 70 of the 
Information Technology Act. 2000 (21 of 2000), the Central Government hereby declares the 
UIDAI’s Central Identities Data Repository (CJDR) facilities, Information Assets, Logistics 
Infrastructure and Dependencies Installed at UIDAI (Unique Identification Authority of India.) 
locations to be Protected System for the Purpose of Information Technology Act 2000, 

Authorised personnel as per Sub-section (2) of Section 70 of IT Act 2000 (amended 2008) 
having role based access to U1DAI-C.IDR facility are: 

1. Designated UIDAI officers & Support. Staff. 

2. UIDAI authorised team members of contracted Managed Service Provider (MSP). 

3. Other authorised third party Vendors and its partners. 

♦ 

4. UIDAI authorised business partners. 


[F. No. 10(36)/2015-EG-I1] 
RAJIV KUMAR, Jt. Secy, 


! * 


Printed hy the Manager. Government of India Press. Ring Road, Maynpuri, New Delhi-1 10064 
and Published by the Controller of Publications, Delhi-110054. 



xu (?£ fc 


No. :10(27)/2ft 16-EG-I I 
Government of India 

Ministry ol Electronics and Information Technology 


Ivlectrimics Nike tan. 

6 ('GO Complex. 
New Delhi-1 10003 
Dated: 22’"' June. 20)7 


OFFICE MEMORANDUM 


-Intension nf stipulated date for Aadhaar Enrolment as ‘mentioned in various 
Not (heal mas issued by Central Ministries under Section 7 of Aadhaar (Targeted Delivery of 
financial and Other Subsidies. Benefits and Services) Act, 2016 upto 30 ,h September, 2017, 

■ 

! he use oi Aadhaar as identifier lor delivery of scrvices/bcnclus/subsidics simplifies 
Government delivery processes, brings in good governance., transparency and efficiency, and 
enables beneficiaries to get their enticements directly to them in a convenient and hassle lice 
manner. Aadhaar obviates the need for producing multiple documents to prove identity. 

2. I he Central Ministries for the purpose of using Aadhaar for delivery of services, benefits 
and subsidies funded from the Consolidated Fund of India have issued notifications under Section 7 
of the Aadhaar Act. The list of such notifications is given in Annexure. The Notifications inter oho 
mention the stipulated dates by which the beneficiaries of the respective scheme shall have to 
provide Aadhaar number or lo apply for Aadhaar enrolment. 

Jn ortIcr 50 facilitate convenient and seamless delivery of scmccs/bencfils/subsidies 
covered by these notifications to die intended eligible beneficiaries and avoid hardships to such 
beneficiaries, it has now been decided to extend the stipulated date in the notifications to 30 11 ' 
September. 20.17 (wherever stipulated date is prior to 30 th September. 2017). for onlv ihose 
beneficiaries who have not enrolled for Aadhaar, It is further clarified that this extension shall 
only apply to those beneficiaries who are not assigned Aadhaar number or those who have not 
yet enrolled For Aadhaar.Such beneficiaries arc required to enroll for Aadhaar bv 30th 
.September. 20F7 and provide their Aadhaar number or enrolment ID as required under the 
respective no!ideations issued under Section 7 of ihe Aadhaar Act. 

4 - h° r such beneficiaries who have not enrolled, for Aadhaar. the respective 
Ministries/Departments should facilitate their Aadhaar enrolments through appropriate measures, in 
accordance with Regulation 12 of Aadhaar (Enrolment and Update) Regulations. 2016 and ensure 
that the benefits are continued to them on the basis of alternate means of identification till they are 
assigned Aadhaar numbers in accordance with Section 7 of the Aadhaar Act. 

*'• respective Ministries/Departments should also lake special measures to issue Aadhaar 

numbers to women, children, senior citizens, persons wilh’disability. unskilled and unorganized • 
workers, nomadic tribes or tb such other persons who do not have any permanent dwelling house 
etc. in ueeoidnnoe with Section 5 of the Aadhaar Act, 2016. to ensure that the services/bene fils are 
not denied to the eligible beneficiaries. 

respective Ministries/Departments should issue necessary orders in this regard and 
provide wide publicity for the .information of their beneficiaries and public at large. \ 

d r\ 

. (Iv<ij i v 13 an sal! 

Join!ISeereiarv 




x>: 


fin .Secretaries t/> (Government of India 
All Central Minislries/DepaiTmcnl.* 





237 


List of Notifications under Section 7 the Aadhaar Act 2016 published in Gazette of India 


SI, No. 

Ministry/Dopartment 

SI.No. 

Name of the Scheme 

7 

Date of publication in 
Official Gazette 

. ! 

Ministry of Labour and 
Employment 

1 

Employees 1 Pension Scheme. 1995 

1/4/2017 

A 

/, 

Housing Subsidy Benefit 

1/30/201/ 


3 

Scholarship Subsidy Benefit 

2/28/2017 


4 

National Career Services (NCS) 

2/27/2017 

t 


■ 5 

.Stipend to Trainees under the Scheme of Welfare for 
SC/STs Job Seekers through coaching, guidance & 
vocational training 

2/27/2017 

f 

6 

Stipend to persons with disabilities defined under 

The Right of Person With Disbililies (RPwD) Act 

2/27/2017 


“T 

/ 

Bonded Labour Rehabilitation Scheme 

3/6/201? 


8 . 

National Child Labour Project (NCLP) 

3/24/2017 

. 

9 

Grants-in-aid lo Voluntary Organizations (stipend 
component for training centres) 

3/24/201 ■ 

2 

Ministry of Skill 

Development & . • 
Entrepreneurship 

• 

10 

National Apprenticeship Promotion Scheme (NAPS) 

2/10/2017 

11 

Pradhan Mantri Kaushal Vikash Yojana [PMKVYj 

3/20/2017 

3 

Department of Personnel & 
Training 

12 

Five identified schemes 

2/15/2017 

4 

Ministry of Agriculture and 
Farmer's Welfare 

13 

Crop Insurance Schemes 

2/8/2017 


14 

Mission for Integrated Development of Horticulture 
(MIDH) 

3/10/2017 


15 

Soil Health Management and Soil Health Card under 
National Mission for Sustainable Agriculture (NMSA) 

2/20/2017 


16 

Agri-Clinics and Agri-Business Centres (AC&ABC) 

> * 

3/22/2017 


17 

National Food Security Mission (NFSM) 

3/17/2017 



18 

Per Drop More Crop component of Pradhan Mantri Krishi 
Sincliayee Yojana fPMKSY) 

3/21/2017 

• 


19 

Support to Slate Extension Programmes for Extension 
Reform - ATMA Scheme 

4/5/2017 


20 

Rnmfed Area Development under NMSA 

4/25/2017 


21 

National Mission on Oilseeds and Oil Palm (NMGQP) 

4/28/2017 


22 

Sub-Mission on Agricultural Mechanism Scheme (SMAM) 
[Component 1& 2] (Central Sector] 

4/27/2017 


23 

Sub-Mission on Agricultural Mechanism Scheme (SMAM) 
[Component 3 to 8] [Centrally Sponsored] 

4/27/2017 

i 

* 

24 

Sub-Mission on Seeds & Planting Materials (SMSP) 
under National Mission on Agriculture Extension and 
Technology (NfclAET) 

5/9/2017 ■ 

* 






SI. Ik 

Ministry/Department 

SI, No 

Name of the Scheme 

Daro of publication in 
Official Gazette 


1 ■ » 

: 

Cooperative : raining and Education by NCUi and NCCT- 

6/9/2017 

0 

Ueptt. o; High©'‘Education, 26 
MHRD 

Central Sector Scholarship Scheme for College ana 
University Students 

2/17/2017 

r. 



Scholarship & Fellowship Schemes being 
implemented by UGC and AICTE 

4/26/2017 

0 

Uopil. ot School Education 
S Literacy, MHRD 

28 

- 

National Maens-cum-Merit Scholarship Scheme 
(NMMSS) 

2/15/2017 

l 


29 

National Scheme of Incentive to Girls for Secondary 
Education (NSIGSE) 

2/15/2017 


' 30 

Payment of salary/honararium to teachers & staff 
under Sarva Sbiksha Abhivan (SSA) 

3/2/2017 



31 

Benefits to 6 to 14 yrs children under Sarva Shiksha 
Abhtyan (SSA) 

3/2/2017 


32 

✓ 

Inclusive Education of the Disabled at Secondary 
State (IEDSS) under RMSA 

3/1/2017 

• 

33 

Scheme of Adult Education & Skill Development - 
Saakshar Bharat 

3/3/2017 


34 

Scheme of support to NGOs/lnstitutions /SRCs for 
Adult Education and Skill Development 

3/3/2017 



35 

Mid-day Meal for Children 

2/28/2017 



36 

Payment of honorarium to Cook-cum-Helpers 
(CCHs) under MDM Scheme 

2/28/2017 


37 

Scheme for providing Quality Education for 

Madarsas (SPQEM) 

4/25/2017 

7 

uepit. oi social Justice and 
Empowerment 

38 

Central Seclor/Centrally Sponsored Scholarship 
Schemes (12) 

2/16/2017 



39 

Assistnce to Voluntary Organizations under various 
Schemes (4 schemes) 

3/1/2017 


40 

Benefits of Schemes of NSFDC. NBCFDC and 
NSKFDC 

3/1/2017 


41 

Other Central Sector/ Centrally sponsored schemes 
(three schemes) 

3/1/2017 



42 

Protection of Civil Rights Act, 1955 and the 

Scheduled Castes and the Scheduled Tribes 
Prevention of Atrocities) Act, 1989 

3/1/2017 



43 

self-Employnenl Scheme for Rehabilitation ot Manual 
scavengers (SRM$) 

3/17/2017 



44 

schemes of Dr Ambedkar Foundation r 

4/7/2017 

8 

)eptt of Empowerment of 
Arsons with Disabilities 

45 ; 

Vssistance to disabled persons for purchase/fitting 
)f Aids and Appliances (ADIP) 

3/3/2017 



rle 

c 

Scholarship Schemes for education of students with 
Usabilities (5 schemes) 

3/3/2017 



47 f 

V 

rational Action Plan for Skill Training of persons 
vith disabilities under SIPDA 

3/3/2017 



48 C 

leendayai Disabled Rehabilitation Scheme (DDRS) 

4/10/2017 


4 

49 C 

islrict •DisabilityRehabilitation Centres (DDRCs) 

4/28/2017 

9 l\ 

c 

Ministry of Women and 
hi Id Development 

• 

50 S 

S 

uoplementary Nutrition Programme under (CDS 
cheme 

2/6/2017 






Si. No. 

~Ministiy/department 

SI.No. 

Name of the Scheme 

Date of publication in 
Official Gazette 



■51 

Payment of honorarium to AWWs 8 AWtfs under T 
ICDS Scheme 

2/6/2017 



52 

Supplementary Nutrition for children offered at 

Creche Centres 

2/21/2017 



53 

Honorarium-paid towards the Creche Workers and 
Creche Helpters 

2/21/2017 



54 

Maternity Benefit Programme (MBP) 

, 2/23/2017 


9 

55 

Scheme for Adolescent Girls 

2/15/2017 



56 

National Mission for Empowerment of Women 
(NMEW) 

2/16/2017 



57 

ICDS Training Programme 

2/14/2017 



58 

Ujjawala Scheme 

2/25/2017 



59 

Swadhar Scheme 

2/25/2017 



so 

Integrated Child Protection Scheme (ICPS) 

2/23/2017 . 



61 

STEP Programme 

2/25/2017 



62 

Rashtriya Mahila Kosh 

2/25/2017 

10 

Ministry 0 ! Rural 

Development 

63 

MGNREGA 

1/4/2017 



1 64 

Deendayat Antyodaya Yojana - National Rural 
Livelihoods Mission (DAY-NRLM) 

2/28/2017 



65 

National Social Assistance Programme (NSAP) 

¥ 

2/27/2017 



66 

Pradhan Mantri Awaas-Yojana - Gramin (PMAY-G) 

2/15/2017 


«* 

67 

Deen Oayal Upadhyaya Grameen Kaushalya Yojana 
(DDU-GKY) 

2/15/2017 

11 

Depttol T-ocd & Public 
Distribution 

68 

Targetted Public Distribution System (TPDS) 

2/3/2017 

12' 

Ministry of Health & Family 
Welfare 

69 

Janani Suraksha Yojana (JSY) 

2/10/2017 


70 

Payment of performance based incentives to 
Accredited Social Health Activists (ASHA) under 
National Health Mission 

3/3/2017 

• 

• 

71 " 

Payment of remuneration to contractual staff 
eng aged'under National Health Mission 

3/3/2017 



72 

Revised National Tubercuiosis Control Programme , 
[RNTCPj 

• 6/19/2017 

.13 

M/o Panchayeti Raj 

73 

e-PanchayatMssion Mode Project 

, 9 

2/17/2017 

14 

M/o Water Resources. RD 

,% (OR 

74 

Research & Development Programme 

2/27/2017 


75 

National Water Mission 

3/6/2017 



76 

Painting & Essay Competitions for School Children under 
IEC component of HRD & Capacity Building Scheme 

3/31/2017 

15 

Depit. of Ex-Servicemen 
Welfare, Min its ry of Defence 

77 

Pension to relired Defence Forces 

Pensioners/Family Pensioners 

0 

3/6/2017 





ZMO 


SI. No. 

Ministry/Department 

Sl.No. 

-1- 

Name of tllo Scheme 

Date of publication in 
Official Gazette 

16 

Ministry of Chemicals and 
Fertilizers 

78 

National Awards Scheme for Technology Innovation 
in Petrochemicals & Downstream Plastics 

Processing Industry 

3/6/2017 


• 

79 

Bhopal Gas Leak Disaster Scheme 

3/6/2017 


i 

80 

Fertilizers Subsidy 

.6/13/2017 

if 

Ministry of Petroleum & 
Natural Gas 

61 

LPG connection under Pracfhan Mgntri Ujjwala 

Vojana (PMUY) 

- 3/6/2017 



”12 

PDS Kerosene Subsidy 

4/28/2017 

18 

Ministry of Information and 
Broadcasting 

63 

Journalist Welfare Scheme 

3/7/2017 



84 

Scholarship Scheme of Satyajit Ray Film & 

Television Institute 

3/7/2017 

19 

Ministry of Science & 
Technology 

85 

INSPIRE Awards/Fellowships 

3/9/2017 

20 

Ministry of Drinking Water & 
Sanitation 

86 

Swachh Bharat Mission (Gramin) 

2/17/2017 

21 

Ministry of Textiles 

87 

National Handicraft Development Programme (NHDP) 

3/29/2017 



88 

National Handioam Development Programme Scheme & 
Comprehensive Development of Handlooms Scheme for 
Hand loom Weavers 

3/29/2017 


* 

89 . 

♦ 

Integrated Scheme for Development ol Silk Industry 

4/25/2017 

22 

Ministry pi Heavy Industry & 
Public I* (ilei prises 

90 

Excise Duty Subsidy on purchase of Car by Physically 
Handicapped Persons 

3/29/2017 



91 

\ 

FAME India Scheme 

5/4/2017 

21 

Ministry of AVUSH 

92 

National AVUSH Mission 

4/3/2017 

?A 

Ministry of Corporate Affairs 

93 

Internship Scheme for Post-Graduate Students 

4/1 9/2017 

25 

Ministry of Urban- 
Development 

94 ■ 

Swachh Bharat Mission (Urban) 

4/28/2017 

26 

Ministry of Minority Affairs 

95 

Scholarship Schemes (3 Schemes) 

4/24/2017 



" 96 

Scekho Aur Kamao 

5/2/2017 



97 

Upgrading Skills & Training in Traditional Arts/Crafts for 
Development IUSTTAD] 

5/2/2017 

27 

Ministry of Rond T; an soon A 
Highways 

98 

National Awar/j for individual in the field of Road Safely 

4/26/2017 


p 

99 

Refresher Training lo Drivers in Unorganized Sector & 
HRD 

4/26/2017 

28 

Minis*'y of Culture 

100 

Schemes of Scholarship/ Fellowships ! Grams for promoting 
culture: 

(a) Award of Scholarship to Young Artistes in Different Cullurai 

5/3/2017 




Tioids, 

(b) Award of Fellowships lo Outstanding Persons in the Ibid of 
(kiiture ar.d 

(c) Tagore National Fellowship/ Scholarship f or G ulluial 

Qnrairr'h 





2M\ 


S/./Vo. j 

i 

I 

Miimtry/Dcpailmont 

S /./Vo. 

Vamr? of t/)fi Schema ]~ 

Date ot publication in 
Official Gazette 

1— 

/ 

• 

101 

Central Sector Shemes of: T 

a) Performing Arts Grant Scheme 
fb) Scheme for Financial Assistance to Cultural Organizations 
vith National Presence 

fcj Artistes Pension Scheme and Walt me Hind 
yj Cu/iurai Funcf/ons and Production Grant Scheme 
(c) Promolfno /nfomatono/ Cu/fura/ ReMons 

5/30/2017 

~ 29 

Ministry of Tourism 

102 

Training Programmes 

5/12/2017 ^ 

30 

Ministry of Finance 

103 

Alai Pension Yojana (APY) 

5/11/2017 

31 ~ 

Department of 
Pharmaceuticals, M/o 
Chemicals and Fertilizers 

104 

} i 

Scholarship to NIPER Students 

5/16/2017 

105 

J 

Pradhan Martin Bharliya Janaushaflhi Psriyojana 
(PM8JP) 

5/30/2017 

32 

Ministry o' Housing $ Urban 
Poverty Alleviation 

106 

Deendayal Ar.lyndaya Yojana - National Urban 

Livelihoods Mission jDAY-NULM) 

5/26/201 7 


Ministry ot Tribal Alfairs 

107 

Central Sector and Centrally Sponsored Scholarship 
Schemes ; 

5/30/2017 

"ToF 

Grani-inAid to Voluntary Organizations working for 
welters of STs 

5/30/2017 

109. 

Development of Particularly Vulnerable Tribal Groups 
(PVTGs) 

5/30/2017 



m" 

Vocation training in tribal areas 

5/30/2017 



TTT 

Institutional support for Development & Marketing of 

Tribal Products/PfOducc 

5/30/2017 

___ 



(Trfv-